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25
It must be noted in that context that the concept of a ‘technical regulation’ extends to four categories of measures, namely (i) the ‘technical specification’, within the meaning of Article 1(3) of Directive 98/34, (ii) ‘other requirements’, as defined in Article 1(4) of that directive, (iii) the ‘rule on services’, covered in Article 1(5) of that directive, and (iv) the ‘laws, regulations or administrative provisions of Member States prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’, under Article 1(11) of that directive (judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 70). | 70
According to that latter provision, the concept of ‘technical regulation’ encompasses four categories of measures, namely (i) ‘technical specifications’ within the meaning of Article 1.3 of Directive 98/34, (ii) ‘other requirements’ as defined in Article 1.4 of that directive, (iii) ‘rules on services’ as referred to in Article 1.5 of that directive, and (iv) ‘laws, regulations or administrative provisions of Member States … prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’. | 42. Regarding the claim that the answer to the question referred is clear, it should be pointed out that, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law and where it leaves no scope for any reasonable doubt, first, a court or tribunal against the decisions of which there is no judicial remedy under national law is not required, in certain circumstances, to make a preliminary reference (see, to that effect, Case 283/81 Cilfit and Others [1982] ECR 3415, paragraphs 14 and 16 to 20) and, second, this Court may give its decision by reasoned order pursuant to Article 104(3) of its Rules of Procedure. |
39
In that regard, it should be noted that in interpreting a provision of EU law, it is necessary, in accordance with established case-law, to consider not only its wording but also its context and the aims pursued by the legislation of which it forms part (see, inter alia, judgments of 1 April 1993, Findling Wälzlager, C‑136/91, EU:C:1993:133, paragraph 11, and 4 February 2016, Hassan, C‑163/15, EU:C:2016:71, paragraph 19). The origins of a provision of EU law may also provide information relevant to its interpretation (see judgments of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 135, and 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 50). | 11 It should be pointed out in that connection that, as the Court has consistently held, in interpreting a provision of Community law it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it forms part (Cases 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12 and 337/82 St Nikolaus Brennerei v Hauptzollamt Krefeld [1984] ECR 1051, paragraph 10). | Or, l’existence d’une situation, telle que celle en cause, pendant une durée prolongée a nécessairement pour conséquence une dégradation significative de l’environnement. En effet, les déchets ont une nature particulière, si bien que leur accumulation, avant même qu’ils ne deviennent dangereux pour la santé, constitue un danger pour l’environnement (voir, en ce sens, arrêt du 16 juillet 2015, , C‑653/13, non publié, EU:C:2015:478, point 38 et jurisprudence citée). |
46. Thus, the position of a Turkish worker who has, in the past, satisfied the conditions laid down in the third indent of Article 6(1) of that decision is no longer dependent on the continuing existence of the conditions for access to the rights laid down in the three indents of that paragraph. Such a worker must be regarded as being sufficiently integrated in the host Member State to be able temporarily to interrupt his employment relationship. Any other interpretation would deprive of its substance that worker’s right of free access to any paid employment of his choice (see Tetik , paragraph 31, and Dogan , paragraphs 14, 18 and 19). | 14. As regards the position of a Turkish worker who, like Mr Dogan, enjoys in the host Member State, after four years of legal employment, ‘the right of free access to any paid employment of his choice’ in that Member State, in accordance with the third indent of Article 6(1), the Court has repeatedly held not only that the direct effect of that provision means that the person concerned derives an individual employment right directly from Decision No 1/80, but also that to be effective that right necessarily implies a concomitant right of residence which does not depend on the continuing existence of the conditions for access to those rights (see Case C-192/89 Sevince [1990] ECR I-3461, paragraphs 29 and 31; Case C-237/91 Kus [1992] ECR I-6781, paragraph 33; Tetik , paragraphs 26, 30 and 31; and Nazli , paragraphs 28 and 40; see also, by analogy, concerning the second indent of the first sentence of Article 7 of Decision No 1/80, Case C‑329/97 Ergat [2000] ECR I-1487, paragraph 40, and Case C-467/02 Cetinkaya [2004] ECR I-0000, paragraph 31; and, concerning the second sentence of Article 7, Case C-355/93 Eroglu [1994] ECR I-5113, paragraph 20, and Case C‑210/97 Akman [1998] ECR I-7519, paragraph 24). | 28 When the Commission refuses to charge certain expenditure to the EAGGF on the ground that it was incurred as a result of breaches of Community rules for which a Member State can be held responsible, it is for that State to demonstrate that the conditions for obtaining the funding refused by the Commission are met (see Case 347/85 United Kingdom v Commission [1988] ECR 1749, paragraph 14 and Case C-48/91 Netherlands v Commission [1993] ECR I-5611, paragraph 16). 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 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 (see Case C-48/91, cited above, paragraph 17). 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 establishes such infringement, it falls to the Member State to show, as the case may be, that the Commission committed an error as to the financial consequences to be drawn from it (see Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 19; Case C-48/91, cited above, paragraph 18 and Case C-59/97 Italy v Commission [1999] ECR I-1683, paragraphs 54 and 55). |
31. Before those complaints are examined, it should be recalled at the outset that, as the Court has repeatedly held, the question whether a Member State has failed to fulfil its obligations must be determined as at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35, and Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 21). | 21 Furthermore, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined as at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35). Even if Directive 96/61 and the new framework directive have altered the Community's approach to strategies for combating water pollution, that does not affect the obligations of the Kingdom of the Netherlands as at the end of the period laid down by the reasoned opinion. | 25
According to the Court’s settled case-law, the tax levied on inheritances, which consist of the transfer to one or more persons of assets left by a deceased person, comes within the scope of the FEU Treaty provisions on movements of capital, save where the constituent elements of inheritances are confined to a single Member State (judgments of 23 February 2006 in van Hilten-van der Heijden, C‑513/03, EU:C:2006:131, paragraph 42; of 17 January 2008 in Jäger, C‑256/06, EU:C:2008:20, paragraph 25; of 17 October 2013 in Welte, C‑181/12, EU:C:2013:662, paragraph 20; and of 3 September 2014 in Commission v Spain, C‑127/12, not published, EU:C:2014:2130, paragraph 53 and the case-law cited). |
49. According to a consistent body of case‑law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, second, to enable that judicature to review the legality of that act (see Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 145; Dansk Rørindustri and Others v Commission , paragraph 462; and Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 148). | 462. According to a consistent body of case-law, the purpose of the obligation to state reasons is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested (see, in particular, Case C-199/99 P Corus UK v Commission [2003] ECR I-11177, paragraph 145). | 22 There is not enough force in any of those arguments to rebut the presumption of relevance attaching to questions referred by the national courts for a preliminary ruling. That is possible only in exceptional cases, where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61, and Case C-105/94 Celestini [1997] ECR I-2971, paragraph 22). Save for such cases, the Court is, in principle, required to give a ruling on questions concerning the interpretation of Community law (see Bosman, cited above, paragraph 59). |
16. Moreover, the aim of Article 13A of the Sixth Directive is to exempt from VAT certain activities which are in the public interest. That provision does not, however, provide exemption from VAT for every activity performed in the public interest, but only for those which are listed therein and described in great detail (see, inter alia, Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 18, and Case C-8/01 Taksatorringen [2003] ECR I‑13711, paragraph 60). | 60. Moreover, it must be borne in mind that the aim of Article 13A of the Sixth Directive is to exempt from VAT certain activities which are in the public interest. That provision does not, however, provide exemption from the application of VAT for every activity performed in the public interest, but only for those activities which are listed and described in great detail in it (see, in particular, Case C-149/97 Institute of the Motor Industry [1998] ECR I-7053, paragraph 18, and Commission v Germany , cited above, paragraph 45). | 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). |
28 Thus, the Court has held that the Brussels Convention merely regulates the procedure for obtaining an order for the enforcement of foreign enforceable instruments and does not deal with execution itself, which continues to be governed by the domestic law of the court in which execution is sought (see Deutsche Genossenschaftsbank, cited above, paragraph 18, and Case 145/86 Hoffmann v Krieg [1988] ECR 645, paragraph 27). | 27 IN ANSWERING THOSE QUESTIONS IT SHOULD FIRST BE POINTED OUT THAT, IN ORDER TO LIMIT THE REQUIREMENTS TO WHICH THE ENFORCEMENT OF A JUDGMENT DELIVERED IN ONE CONTRACTING STATE MAY BE SUBJECTED IN ANOTHER CONTRACTING STATE, THE CONVENTION LAYS DOWN A VERY SIMPLE PROCEDURE FOR THE ISSUE OF THE ENFORCEMENT ORDER, WHICH MAY BE WITHHELD ONLY ON THE GROUNDS EXHAUSTIVELY SET OUT IN ARTICLES 27 AND 28 . HOWEVER, THE CONVENTION MERELY REGULATES THE PROCEDURE FOR OBTAINING AN ORDER FOR THE ENFORCEMENT OF FOREIGN ENFORCEABLE INSTRUMENTS AND DOES NOT DEAL WITH EXECUTION ITSELF, WHICH CONTINUES TO BE GOVERNED BY THE DOMESTIC LAW OF THE COURT IN WHICH EXECUTION IS SOUGHT ( JUDGMENT OF 2 JULY 1985 IN CASE 148/84 DEUTSCHE GENOSSENSCHAFTSBANK V BRASSERIE DU PECHEUR (( 1985 )) ECR 1981 ). | 23 According to settled case-law, the concept of pay, within the meaning of the second paragraph of Article 119, comprises any other consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer (see, in particular, Case 12/81 Garland v British Rail Engineering [1982] ECR 359, paragraph 5, and Case C-262/88 Barber [1990] ECR I-1889, paragraph 12). |
39
The wording of the first subparagraph of Article 7(1) of the directive, read in the light of recital 7 thereof, confirms the binding nature of that general minimum duration in so far as, under that provision, the parties cannot, as a rule, derogate from it by means of an agreement and Member States must ensure that it is complied with (see, to that effect, judgment of 4 June 2015, Faber, C‑497/13, EU:C:2015:357, paragraph 55). | 55. The apportionment of the burden of proof under Article 5(3) of Directive 1999/44 is, in accordance with Article 7 of that directive, binding in nature both for the parties, who may not derogate from it by means of an agreement, and for the Member States, which must ensure that it is complied with. It follows that that rule relating to the burden of proof must be applied even though it has not been expressly relied on by the consumer who may benefit from it. | 34. Moreover, that principle precludes national legislation which curtails, retroactively and without any transitional arrangements, the period within which repayment of the sums collected in breach of EU law could be sought (see judgment in Test Claimants in the Franked Investment Income Group Litigation , EU:C:2013:834, paragraph 38). |
45. With a view to determining the exact scope of Article 41(1) of the Additional Protocol in a situation such as that at issue in the main proceedings, it must be recalled, first, that, in accordance with consistent case-law, the provision has direct effect. It lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill’ clause, which contains an obligation entered into by the contracting parties which amounts in law to a duty not to act (see Savas , paragraphs 46 to 54 and 71, second indent; Abatay and Others , paragraphs 58, 59 and 117, first indent, and Case C‑16/05 Tum and Dari [2007] ECR I‑7415, paragraph 46). Consequently, the rights which Article 41(1) of the Additional Protocol confers on the Turkish nationals to whom it applies may be relied on before the courts of the Member States (see, in particular, Savas , paragraph 54, and Tum and Dari , paragraph 46). | 53 Moreover, the fact that the Association Agreement is intended essentially to promote the economic development of Turkey and therefore involves an imbalance in the obligations assumed by the Community towards the non-member country concerned does not prevent the Community from recognising some of its provisions as having direct effect (see Sürül, cited above, at paragraph 72, and, by analogy, Case 87/75 Bresciani v Amministrazione delle Finanze [1976] ECR 129, paragraph 23; Case C-18/90 Office National de l'Emploi v Kziber [1991] ECR I-199, paragraph 21; and Case C-469/93 Amministrazione delle Finanze dello Stato v Chiquita Italia [1995] ECR I-4533, paragraph 34). | 40
However, it must be observed that, as the Court has previously held, the fact that either the registered office or real head office of a company was established in accordance with the legislation of a Member State for the purpose of enjoying the benefit of more favourable legislation does not, in itself, constitute abuse (see, to that effect, judgments of 9 March 1999, Centros, C‑212/97, EU:C:1999:126, paragraph 27, and of 30 September 2003, Inspire Art, C‑167/01, EU:C:2003:512, paragraph 96). |
39. As the Court has previously stated, the concept of ‘supply of goods’ does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if the recipient were the owner of the property (see Case C‑320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I‑285, paragraph 7, and Case C‑185/01 Auto Lease Holland [2003] ECR I‑1317, paragraph 32). | 32. As the Court found in paragraphs 7 and 8 of Shipping and Forwarding Enterprise Safe , it is clear from the wording of that provision that "supply of goods" does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property. The purpose of the Sixth Directive might be jeopardised if the preconditions for a supply of goods ─ which is one of the three taxable transactions ─ varied from one Member State to another, as do the conditions governing the transfer of ownership under civil law. | 58. Where the national legislation in question does not specify the aim pursued, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (see Palacios de la Villa , paragraph 57, and Age Concern England , paragraph 45). |
39. The Austrian Government ' s argument that, in the absence of a mathematically certain method of calculating tolls or user charges, Articles 7(b) of Directive 93/89 and 7(4) of Directive 1999/62 may not be relied upon cannot be accepted. According to the Court ' s settled case-law, discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Commission v Austria , paragraph 70). That criterion is sufficient to establish whether the prohibition of discrimination laid down in those provisions has been infringed in the case in the main proceedings, by making a comparison of the tolls charged for the various journeys under consideration ( Commission v Austria , paragraphs 79 to 88, 112 and 115). | 81 That finding is confirmed by an examination of the legislative background to the two tariff changes at issue. The resolution of the regional Parliament of the Land of Tyrol, of 17 May 1995, which gave rise to those tariff changes, emphasised the need to protect domestic hauliers (heimischen Frächter) from the drastic charges deriving from those tariff changes. | 35. Second, an advertisement in which the advertiser compares the goods and services which he markets with those of a competitor is aimed, evidently, at promoting the goods and services of that advertiser. With such an advertisement the advertiser seeks to distinguish his goods and services by comparing their characteristics with those of competing goods and services. That analysis is confirmed by recital 15 in the preamble to Directive 97/55, in which the Community legislature pointed out that the aim of comparative advertising is to distinguish between the goods and services of the advertiser and those of his competitor (see Case C‑112/99 Toshiba Europe [2001] ECR I‑7945, paragraph 53). |
33. In addition, with regard to the actual wording of the definitions in Article 2(a) and (b) of that directive, the meaning and scope of the concept of ‘trader’ which is used in that directive must be determined in relation to the related but diametrically opposed concept of ‘consumer’, which refers to any individual not engaged in commercial or trade activities (see, by analogy, Case C‑89/91 Shearson Lehman Hutton [1993] ECR I‑139, paragraph 22). | 22 It follows from the wording and the function of those provisions that they affect only a private final consumer, not engaged in trade or professional activities (see also, to that effect, the judgment in Bertrand, cited above, paragraph 21, and the Expert Report drawn up when the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland acceded to the Convention, OJ 1979 C 59, p. 71, paragraph 153), who is bound by one of the contracts listed in Article 13 and who is a party to the action, in accordance with Article 14. | 87. In this regard, it suffices to point out that, even though, in the areas in which the Community does not have competence, the Member States remain, in principle, free to lay down the conditions for the existence and exercise of the rights at issue, they must nevertheless exercise that competence consistently with Community law (see, by analogy, as regards social security, Case C‑120/95 Decker [1998] ECR I‑1831, paragraphs 22 and 23, and Case C‑158/96 Kohll [1998] ECR I‑1931, paragraphs 18 and 19; as regards direct taxation, Case C‑334/02 Commission v France [2004] ECR I‑2229, paragraph 21, and Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29). |
38
In that regard, while it is true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conduct of crime prevention patrols may require the use of physical force requiring a particular physical aptitude, the fact remains that certain police functions, such as providing assistance to citizens or traffic control, do not clearly require the use of significant physical force (see, to that effect, the judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraphs 39 and 40). | 39. Although it is true that some of those duties, such as providing assistance to citizens or traffic control, are not likely to require the use of physical force, the fact remains that tasks relating to the protection of persons and property, the arrest and custody of offenders and the conduct of crime prevention patrols may require the use of physical force. | 26. As the Advocate General stated in points 72 and 73 of his Opinion, it is apparent from settled case-law that a national of a Member State, who pursues a professional activity on a stable and continuous basis in another Member State, comes under the chapter of the EC Treaty relating to the right of establishment and not that relating to services (see, inter alia, Case 2/74 Reyners [1974] ECR 631, paragraph 21, and Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 28). |
90. However, the Court added, in paragraph 76 of Arblade and Others , that where there is an obligation to keep available and retain certain documents at the address of a natural person residing in the host Member State who holds them as the agent or representative of the employer by whom he has been designated, even after the employer has ceased to employ workers in that State, it is not sufficient, for the purposes of justifying such a restriction on the freedom to provide services, that the presence of such documents within the territory of the host Member State may make it generally easier for the authorities of that State to perform their supervisory task. It must also be shown that those authorities cannot carry out their supervisory task effectively unless the undertaking has, in that Member State, an agent or representative designated to retain the documents in question. In that connection, the Court has held that a requirement that a natural person domiciled in the territory of a host Member State should retain documents cannot be justified (see, Arblade and Others , paragraph 77). | 77 In any event, the obligations to retain social documents within the territory of the host Member State for a period of five years and to retain them at the address of a natural person, as opposed to a legal person, cannot be justified. | 37
The objective of preventing the risk of impunity for persons who have committed an offence is to be seen in that context (see, to that effect, judgment of 27 May 2014 in Spasic, C‑129/14 PPU, EU:C:2014:586, paragraphs 63 and 65) and, as the Advocate General has observed in point 55 of his Opinion, must be considered a legitimate objective in EU law. |
26
The basis of assessment for a supply of services is everything which makes up the consideration for the service provided and a supply of services is therefore taxable only if there is a direct link between the service supplied and the consideration received. It follows that a supply of services is effected ‘for consideration’ within the meaning of Article 2(1)(c) of Directive 2006/112, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient (judgments of 3 March 1994 in Tolsma, C‑16/93, EU:C:1994:80, paragraphs 13 and 14; 21 March 2002 in Kennemer Golf, C‑174/00, EU:C:2002:200, paragraph 39; and 6 October 2009 in SPÖ Landesorganisation Kärnten, C‑267/08, EU:C:2009:619, paragraph 19). | 39 In that regard, according to the case-law of the Court, the basis of assessment for a provision of services is everything which makes up the consideration for the service provided and a provision of services is taxable only if there is a direct link between the service provided and the consideration received (Apple and Pear Development Council, paragraphs 11 and 12, and Case C-16/93 Tolsma [1994] ECR I-743, paragraph 13). A supply of services is therefore taxable only if there exists between the service provider and the recipient a legal relationship in which there is a reciprocal performance, the remuneration received by the provider of service constituting the value actually given in return for the service supplied to the recipient (Tolsma, paragraph 14). | 30. Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly ( Sison v Council , paragraph 63; Sweden and Turco v Council , paragraph 36; Sweden and Others v API and Commission , paragraph 73; and Sweden v MyTravel and Commission , paragraph 75). |
105 As to the argument that repayment would be complicated and hard to verify and the argument concerning the wide reach of the aid scheme across the fabric of national production industry, it is sufficient to point out, in accordance with the case-law of the Court, that apprehension of even insuperable internal difficulties cannot justify a failure by a Member State to fulfil its obligations under Community law (see, in particular, Case C-404/97 Commission v Portugal [2000] ECR I-4897, paragraph 52). In this case, since the Italian Government has made no attempt to recover the aid in question, implementation of the decision to effect recovery cannot be shown to be impossible (Case C-6/97 Italy v Commission [1999] ECR I-2981, paragraph 34). | 52 It is settled case-law that apprehension of even insuperable internal difficulties cannot justify a failure by a Member State from complying with its obligations under Community law (see, to that effect, Case C-52/95 Commission v France [1995] ECR I-4443, paragraph 38, Case C-265/95 Commission v France [1997] ECR I-6959, paragraph 55, and Case C-280/95 Commission v Italy [1998] ECR I-259, paragraph 16). | 28. With regard to Directive 2004/38, the Court has already had occasion to point out that it aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty and that it aims in particular to strengthen that right (see Case C‑127/08 Metock and Others [2008] ECR I‑6241, paragraphs 82 and 59, and Lassal , paragraph 30). |
30. In numerous judgments the Court has defined the letting of immovable property, within the meaning of Article 13B(b) of the Sixth Directive, as the landlord assigning to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude other persons from it (see, to that effect, Commission v Ireland, paragraphs 52 and 57; Case C-409/98 Mirror Group [2001] ECR I-7175, paragraph 31; Case C-326/99 ‘ Goed Wonen ’ [2001] ECR I‑6831, paragraph 55, and Temco Europe , paragraph 19). | 19. In numerous cases, the Court has defined the concept of the letting of immovable property within the meaning of Article 13B(b) of the Sixth Directive as essentially the conferring by a landlord on a tenant, for an agreed period and in return for payment, of the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right (see, to that effect, Goed Wonen , paragraph 55; Case C-409/98 Mirror Group [2001] ECR I-7175, paragraph 31; Case C-108/99 Cantor Fitzgerald International [2001] ECR I-7257, paragraph 21; Case C-269/00 Seeling [2003] ECR I-4101, paragraph 49; and Sinclair Collis , paragraph 25). | 20. Cette exigence répond à la finalité de la procédure précontentieuse qui, selon une jurisprudence établie, consiste à donner à l’État membre concerné l’occasion, d’une part, de se conformer à ses obligations découlant du droit de l’Union et, d’autre part, de faire utilement valoir ses moyens de défense à l’encontre des griefs formulés par la Commission (voir arrêts du 15 janvier 2002, Commission/Italie, C‑439/99, Rec. p. I‑305, point 10, et Commission/Portugal, précité, point 20). |
43. Thus the Court has held that it has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation or the assessment of the validity of a provision of Community law sought by that court bears no relation to the actual facts of the main action or its purpose, or 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 Bosman , paragraph 61; Case C-437/97 EKW and Wein & Co [2000] ECR I-1157, paragraph 52; and Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20). | 20 It must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59). Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law 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 Bosman, paragraph 61, and Case C-437/97 Evangelischer Krankenhausverein Wien and Others v Abgabenberufungskommission Wien and Others [2000] ECR I-1157, paragraph 52). | 59. That is true, in particular, of a measure under which a distinction is drawn on the basis of residence, in that that requirement is liable to operate mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners (see, inter alia, Case C-224/97 Ciola [1999] ECR I‑2517, paragraph 14; Case C‑388/01 Commission v Italy , paragraph 14; Case C‑103/08 Gottwald [2009] ECR I-9117, paragraph 28; and Case C-73/08 Bressol and Others [2010] ECR I-0000, paragraph 45). |
52
Actual exercise of freedom of establishment thus entails, in particular, as a necessary adjunct to that freedom, that the subsidiary, agency or branch set up by a legal person established in another Member State must be able, where relevant, and if the activity which it proposes to carry out in the host Member State so requires, to take on workers in that Member State (see, to that effect, judgment of 10 July 1986, Segers , 79/85, EU:C:1986:308, paragraph 15). | 15 IT IS ESTABLISHED THAT ENTITLEMENT TO REIMBURSEMENT OF SICKNESS COSTS PERTAINS TO A PERSON AND NOT TO A COMPANY . HOWEVER , THE REQUIREMENT THAT A COMPANY FORMED IN ACCORDANCE WITH THE LAW OF ANOTHER MEMBER STATE MUST BE ACCORDED THE SAME TREATMENT AS NATIONAL COMPANIES MEANS THAT THE EMPLOYEES OF THAT COMPANY MUST HAVE THE RIGHT TO BE AFFILIATED TO A SPECIFIC SOCIAL SECURITY SCHEME . DISCRIMINATION AGAINST EMPLOYEES IN CONNECTION WITH SOCIAL SECURITY PROTECTION INDIRECTLY RESTRICTS THE FREEDOM OF COMPANIES OF ANOTHER MEMBER STATE TO ESTABLISH THEMSELVES THROUGH AN AGENCY , BRANCH OR SUBSIDIARY IN THE MEMBER STATE CONCERNED . THAT PROPOSITION IS SUPPORTED BY THE FACT THAT ACCORDING TO THE COUNCIL ' S GENERAL PROGRAMME FOR THE ABOLITION OF RESTRICTIONS ON FREEDOM OF ESTABLISHMENT OF 18 DECEMBER 1961 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , SECOND SERIES IX , P . 7 ), WHICH PROVIDES USEFUL GUIDANCE FOR THE IMPLEMENTATION OF THE RELEVANT PROVISIONS OF THE TREATY ( SEE JUDGMENTS OF 28 APRIL 1977 , CASE 71/76 THIEFFRY ( 1977 ) ECR 765 AND OF 18 JUNE 1985 IN CASE 197/84 STEINHAUSER ( 1985 ) ECR 1819 ), ALL PROVISIONS AND ADMINISTRATIVE PRACTICES WHICH ' DENY OR RESTRICT THE RIGHT TO PARTICIPATE IN SOCIAL SECURITY SCHEMES , IN PARTICULAR SICKNESS . . . INSURANCE SCHEMES ' ARE TO BE REGARDED AS RESTRICTIONS ON THE FREEDOM OF ESTABLISHMENT .
| 8. In those circumstances, the Unabhängiger Verwaltungssenat des Landes Oberösterreich, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Do the rule of law considerations inherent in Article 16 of the Charter and/or the considerations of transparency inherent in Article 49 TFEU preclude a national provision such as point 3 of Paragraph 10(2) of the ApG at issue in the [main proceedings], pursuant to which the condition whether there is a need to establish a new public pharmacy is not specified at least in essence in the legislation itself but its elaboration is left in considerable respects to the national courts, since it cannot be excluded that a scheme of that kind affords a significant competitive advantage to interested parties from Austria, individually and as a whole, over nationals from other Member States?
2. If Question 1 is answered in the negative: Does Article 49 TFEU preclude a national provision such as point 3 of Paragraph 10(2) of the ApG, which in relation to the crucial condition whether a need is deemed to exist sets a rigid threshold of 5 500 people without allowing for any departure from that general rule, since de facto under a scheme of that kind it does not appear possible to ensure (without more) the achievement in a consistent manner of the legislative objective pursued, in terms of paragraphs 98 to 101 of the [judgment in Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez [2010] ECR I‑4629]?
3. If Question 2 is also answered in the negative: Do Article 49 TFEU and/or Article 47 of the Charter preclude a provision such as point 3 of Paragraph 10(2) of the ApG which has been interpreted, as result of the case-law of the highest national courts concerning the verification of the existence of a need, to include additional detailed criteria – such as whether an application has priority in time, the blocking effect of an existing application in relation to subsequent applications, the two-year lockout period following the rejection of an application, criteria for determining the number of ‘permanent inhabitants’ and ‘incoming users’ and for allocating the customer base in the event of an overlap between the four-kilometre radius surrounding each of two or more pharmacies, etc. – since, as a result, it is not possible to ensure that, as a general rule, the provision will be applied in a manner that is foreseeable and calculable and within a reasonable period and, hence, the legislative provision cannot be considered appropriate, in fact, to ensure the achievement in a consistent manner of the legislative objective pursued (see paragraphs 98 to 101 and 114 to 125 of the Court’s judgment in Blanco Pérez ) and/or the provision of an adequate pharmaceutical service must be regarded as de facto not ensured and/or discrimination must be presumed as between applicants from Austria amongst themselves or between them and applicants from other Member States?’
Admissibility |
52
Moreover, it must be noted that, as a rule, any positive effects of a future creation of a new habitat, which is aimed at compensating for the loss of area and quality of that same habitat type on a protected site, are highly difficult to forecast with any degree of certainty and, in any event, will be visible only several years into the future (see, to that effect, judgment of 15 May 2014 in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 32). | 32. It should further be noted that, as a rule, any positive effects of a future creation of a new habitat which is aimed at compensating for the loss of area and quality of that same habitat type on a protected site, even where the new area will be bigger and of higher quality, are highly difficult to forecast with any degree of certainty and, in any event, will be visible only several years into the future, a point made in paragraph 87 of the order for reference. Consequently, they cannot be taken into account at the procedural stage provided for in Article 6(3) of the Habitats Directive. | 44 As regards the validity of the Council Regulation, it should be recalled that in Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 102, the Court dismissed the plea in law, put forward as a ground for annulment of that regulation, alleging that it was incompatible with the Lomé Convention and Protocol 5. |
71. The Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (Joined Cases C-175/98 and C-177/98 Lirussi and Bizzaro [1999] ECR I-688 1, paragraphs 37 and 38). | 38 The Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case 13/68 Salgoil [1968] ECR 453, Case 51/74 Van der Hulst [1975] ECR 79, paragraph 12, and Case C-320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11) . | 50. By contrast, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of EU law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them (judgments in Pokrzeptowicz-Meyer , C‑162/00, EU:C:2002:57, paragraph 49, and Commission v Freistaat Sachsen , C‑334/07 P, EU:C:2008:709, paragraph 44). |
45. In accordance with settled case‑law, as regards the levying of VAT, the principle of fiscal neutrality precludes any general distinction between lawful and unlawful transactions (see, inter alia, Case 269/86 Mol [1988] ECR 3627, paragraph 18; Case C-158/98 Coffeeshop ‘Siberië’ [1999] ECR I-3971, paragraphs 14 and 21, and Joined Cases C-439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I-6161, paragraph 50). The Court concluded that Member States cannot reserve the exemption solely to lawful games of chance ( Fischer , paragraph 28). The lawful or unlawful nature of the operation of a game of chance thus cannot be taken into account in the examination of the similar nature of two games of chance. | 18 It must be acknowledged that the principle of fiscal neutrality does in fact preclude, as far as the levying of value-added tax is concerned, a generalized differentiation between lawful and unlawful transactions . However, that is not true in the case of the supply of products, such as narcotic drugs, which have special characteristics inasmuch as, because of their very nature, they are subject to a total prohibition on their being put into circulation in all the Member States, with the exception of strictly controlled economic channels for use for medical and scientific purposes . In a specific situation of that kind where all competition between a lawful economic sector and an unlawful sector is precluded, the fact that no liability to value-added tax arises cannot affect the principle of fiscal neutrality . | 40
The deduction system, and accordingly the refund system, is intended to relieve the operator entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT therefore ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT (judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 35 and the case-law cited). |
35. The term ‘organisation’ is in principle sufficiently broad to include private profit-making entities (see, to that effect, Case C-216/97 Gregg [1999] ECR I-4947, paragraph 17, and Hoffmann , cited above, paragraph 24). | 17 The terms `establishment' and `organisation' are in principle sufficiently broad to include natural persons as well. It may be added that none of the language versions of Article 13A of the Sixth Directive include the term `legal person', which would have been clear and unambiguous, instead of the abovementioned terms. It may be inferred that, in employing those terms, the Community legislature did not intend to confine the exemptions referred to in that provision to the activities carried on by legal persons, but meant to extend the scope of those exemptions to activities carried on by individuals. | 54. The depth of the Court’s review must be limited in particular where, as in the present case, the Community institutions have to reconcile divergent interests and thus select options within the context of the policy choices which are their own responsibility (see, to that effect, Case C-17/98 Emesa Sugar [2000] ECR I-675, paragraph 53). |
22. It is clear from Article 225 EC, from the first paragraph of Article 58 of the Statute of the Court of Justice and from Article 112(1)(c) of its Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C 352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34; Case C 248/99 P France v Monsanto and Commission [2002] ECR I‑1, paragraph 68; and the order in Case C‑488/01 P Martínez v Parliament [2003] ECR I‑13355, paragraph 40). | 68 In that regard, it follows from Article 225 EC, the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergadem and Goupil v Commission [2000] ECR I-5291, paragraph 34). | 21. Article 13 of Regulation No 1408/71, which is the first article of Title II on determination of the legislation applicable, provides in paragraph 1 thereof that, subject to Articles 14c and 14f, persons to whom the regulation applies are to be subject to the legislation of a single Member State only. As is apparent inter alia from the 5th, 8th and 10th recitals in the preamble to that regulation, the principle that the legislation of a single Member State is to apply in matters of social security is aimed at eliminating unequal treatment which, for employed and self-employed workers moving within the Community, is the consequence of partial or total overlapping of the applicable legislation (see, to that effect, Case C-169/98 Commission v France [2000] ECR I-1049, paragraph 43). Thus, according to Article 14a(2) of Regulation No 1408/71, a person normally self-employed in the territory of two or more Member States is to be subject to the legislation of the Member State in whose territory he resides (see Case C-340/94 De Jaeck [1997] ECR I‑461, paragraph 11). |
5 THE FIRST PARAGRAPH OF ARTICLE 95 , WHICH IS BASED ON A COMPARISON OF THE TAX BURDENS IMPOSED ON DOMESTIC PRODUCTS AND ON IMPORTED PRODUCTS WHICH MAY BE CLASSIFIED AS ' ' SIMILAR ' ' , IS THE BASIC RULE IN THIS RESPECT . THIS PROVISION , AS THE COURT HAS HAD OCCASION TO EMPHASIZE IN ITS JUDGMENT OF 10 OCTOBER 1978 IN CASE 148/77 , H . HANSEN JUN . & O . C . BALLE GMBH & CO . V HAUPTZOLLAMT FLENSBURG ( 1978 ) ECR 1787 , MUST BE INTERPRETED WIDELY SO AS TO COVER ALL TAXATION PROCEDURES WHICH CONFLICT WITH THE PRINCIPLE OF THE EQUALITY OF TREATMENT OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ; IT IS THEREFORE NECESSARY TO INTERPRET THE CONCEPT OF ' ' SIMILAR PRODUCTS ' ' WITH SUFFICIENT FLEXIBILITY . THE COURT SPECIFIED IN THE JUDGMENT OF 17 FEBRUARY 1976 IN THE REWE CASE ( CASE 45/75 ( 1976 ) ECR 181 ) THAT IT IS NECESSARY TO CONSIDER AS SIMILAR PRODUCTS WHICH ' ' HAVE SIMILAR CHARACTERISTICS AND MEET THE SAME NEEDS FROM THE POINT OF VIEW OF CONSUMERS ' ' . IT IS THEREFORE NECESSARY TO DETERMINE THE SCOPE OF THE FIRST PARAGRAPH OF ARTICLE 95 ON THE BASIS NOT OF THE CRITERION OF THE STRICTLY IDENTICAL NATURE OF THE PRODUCTS BUT ON THAT OF THEIR SIMILAR AND COMPARABLE USE .
| 16AT THE PRESENT STAGE OF ITS DEVELOPMENT AND IN THE ABSENCE OF ANY UNIFICATION OR HARMONIZATION OF THE RELEVANT PROVISIONS , COMMUNITY LAW DOES NOT PROHIBIT MEMBER STATES FROM GRANTING TAX ADVANTAGES , IN THE FORM OF EXEMPTION FROM OR REDUCTION OF DUTIES , TO CERTAIN TYPES OF SPIRITS OR TO CERTAIN CLASSES OF PRODUCERS .
INDEED , TAX ADVANTAGES OF THIS KIND MAY SERVE LEGITIMATE ECONOMIC OR SOCIAL PURPOSES , SUCH AS THE USE OF CERTAIN RAW MATERIALS BY THE DISTILLING INDUSTRY , THE CONTINUED PRODUCTION OF PARTICULAR SPIRITS OF HIGH QUALITY , OR THE CONTINUANCE OF CERTAIN CLASSES OF UNDERTAKINGS SUCH AS AGRICULTURAL DISTILLERIES .
| 34 As the Court held in Case 150/80 Elefanten Schuh v Jacqmain [1981] ECR 1671, paragraph 25, Article 17 is intended to lay down itself the conditions as to form which jurisdiction clauses must meet, so as to ensure legal certainty and to ensure that the parties have given their consent. |
79. The Court has thus held that concept is one of Community law and must accordingly be given an autonomous and uniform interpretation throughout the Community, the search for which must take account of the background to the provision in which it appears and of the purpose of the rules in question (see, to that effect, Adolf Truley , paragraphs 36, 40 and 45). | 36. In the present case, it is common ground that the second subparagraph of Article 1(b) of Directive 93/36 makes no express reference to the law of the Member States, with the result that the abovementioned terms must be given an autonomous and uniform interpretation throughout the Community. | 46. It is clear from settled case‑law that a restriction on freedom of establishment is warranted only if it is justified by overriding reasons of public interest. In that situation, it must also be suitable for securing the attainment of the objective which it pursues and not go beyond what is necessary in order to attain that objective (see, to that effect, judgment of 27 October 2005 in Case C-158/03 Commission v Spain , paragraph 35; Case C‑518/06 Commission v Italy [2009] ECR I‑0000, paragraph 72; and Case C-531/06 Commission v Italy [2009] ECR I‑0000, paragraph 49). |
37. As regards, in the first place, whether a transaction such as the conclusion of the licensing agreement at issue in the main proceedings results in the accrual of a tax advantage contrary to the objectives of the VAT Directive, it is to be pointed out, first, that the term ‘place of supply of services’, which determines the place where the supply is taxed, is — like the terms ‘taxable person’, ‘supply of services’ and ‘economic activity’ — objective in nature and applies without regard to the purpose or results of the transactions concerned and without it being necessary for the tax authorities to examine the intention of the taxable person (see, to this effect, judgments in Halifax and Others , C‑255/02, EU:C:2006:121, paragraphs 56 and 57, and Newey , C‑653/11, EU:C:2013:409, paragraph 41). | 57. As the Court held in paragraph 24 of its judgment in Case C-4/94 BLP Group [1995] ECR I-983, an obligation on the tax authorities to carry out inquiries to determine the intention of the taxable person would be contrary to the objectives of the common system of VAT of ensuring legal certainty and facilitating the application of VAT by having regard, save in exceptional cases, to the objective character of the transaction in question. | 29. Also, it is indeed settled case-law that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C-345/06 Heinrich [2009] ECR I-0000, paragraph 30 and the case-law cited). |
30. It is, moreover, common ground that the purpose of the right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure (see Schultz-Hoff and Others , paragraph 25). The positive effect of paid annual leave for the safety and health of the worker continues to be of significance if it is not taken in the reference period but during a later period (Case C‑124/05 Federatie Nederlandse Vakbeweging [2006] ECR I‑3423, paragraph 30). | 25. It is common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill. | 38. It is settled case-law that Article 56 TFEU requires not only the elimination of all discrimination against providers of services on grounds of nationality or the fact that they are established in a Member State other than that where the services are to be provided, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 33, and judgment of 21 July 2011 in Case C-518/09 Commission v Portugal , paragraph 63 and the case-law cited). |
11. “technical regulation”, technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.
…
…
This Directive shall not apply to those measures Member States consider necessary under the Treaty for the protection of persons, in particular workers, when products are used, provided that such measures do not affect the products.’
4. The first subparagraph of Article 8(1) of Directive 98/34 is worded as follows:
‘Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.’
National legislation
5. Articles 8 to 13 of the Royal Decree of 2 June 2008 concerning the minimum safety requirements for certain old electrical installations at places of work ( Moniteur belge of 19 June 2008, p. 31631, ‘the Royal Decree’) provide:
‘Article 8. Electrical installation shall be carried out in such a way as to protect workers against risks due to direct contact and indirect contact, against the effects of overvoltage due inter alia to faulty insulation, operations and atmospheric influences, against burns and other health risks and also against non-electrical risks due to the installation of electricity.
If it does not seem possible to eliminate the abovementioned risks by measures relating to design or collective protection, access to those installations must be exclusively limited to workers with Code BA4 or BA5 competence as stipulated in Article 47 of [the general regulation on electrical installations].
Article 9. Electrical installation shall be carried out in such a way as to:
(1) avoid arcs and dangerous surface temperatures;
(2) avoid overheating, fire and explosion.
Article 10. (1) Each circuit shall be protected by at least one safety device which cuts off an overload current before heating can occur which may damage the insulation, connections, leads or the environment.
Each circuit shall be protected by a safety device which cuts off a short circuit current before dangerous effects are caused.
(2) By way of derogation from the provisions of paragraph (1), it is permissible not to protect certain circuits against excess current, provided that the conditions and procedure set out in Articles 119, 123 and 126 of [the general regulation on electrical installations] are observed.
Article 11. (1) In order to carry out work with the power off, it must be made possible to cut off the electrical installation or individual electrical circuits securely and reliably.
(2) The functional control shall be effected in a secure and reliable manner.
(3) The effects of drops in voltage or the disappearance of voltage and its reappearance shall not compromise the safety of workers.
Article 12. Electrical installation shall be carried out with electrical equipment designed in such a way as not to compromise the safety of persons where installation and maintenance are correct and use is in accordance with the intended purpose.
Where appropriate, the equipment shall comply with the provisions of decrees transposing relevant Community directives.
Article 13. The electrical equipment used shall either by virtue of its design or by virtue of additional protection be suitable for external influences and existing or reasonably foreseeable conditions of use.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
6. The applicants in the main proceedings, by an application lodged on 18 August 2008 before the national court, applied for the annulment of the Royal Decree.
7. In support of their application, the applicants in the main proceedings raise inter alia an infringement of Directive 98/34 on the ground that the Royal Decree contains technical regulations, the draft of which should have been communicated to the Commission, in accordance with Article 8 of that directive.
8. In those circumstances the Conseil d’État (Belgian Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Do national provisions such as Articles 8 to 13 of [the Royal Decree], which lay down requirements relating to the carrying out of electrical installations, the design of electrical equipment and forms of protection attached to that equipment in order to ensure the safety of workers, constitute technical regulations within the meaning of Article 1(11) of Directive [98/34], the drafts of which must be notified in accordance with the first subparagraph of Article 8(1) of the same directive?
2. Are national provisions such as Articles 8 to 13 of [the Royal Decree] measures within the meaning of the final subparagraph of Article 1 of Directive [98/34] which the Member States consider necessary for the protection of persons, in particular workers, when products are used, and which do not affect the products?’
Consideration of the questions referred
The first question
9. By its first question, the national court asks, in essence, whether Article 1(11) of Directive 98/34 must be interpreted as meaning that national provisions such as those at issue in the main proceedings amount to technical regulations, within the meaning of that provision, the drafts of which must be the subject of the communication provided for in the first subparagraph of Article 8(1) of that directive.
10. It is settled case-law that Directive 98/34 is designed to protect, by means of preventive monitoring, the free movement of goods, which is one of the foundations of the European Union, and that this control serves a useful purpose in that technical regulations falling within the scope of that directive may constitute obstacles to trade in goods between Member States, such obstacles being permissible only if they are necessary to satisfy compelling requirements relating to the public interest (see Case C‑194/94 CIA Security International [1996] ECR I‑2201, paragraphs 40 and 48, and Case C‑303/04 Lidl Italia [2005] ECR I‑7865, paragraph 22).
11. In this context, it should be recalled that, according to the case-law, it follows from Article 1(11) of Directive 98/34 that the definition of ‘technical regulation’ can be broken down into three categories: first, the ‘technical specification’ within the meaning of Article 1(3) of that directive; second, the ‘other requirements’, as defined in Article 1(4) of that directive; and, third, the prohibition of the manufacture, importation, marketing or use of a product referred to in Article 1(11) of the directive (see Case C‑267/03 Lindberg [2005] ECR I‑3247, paragraph 54, and Case C‑20/05 Schwibbert [2007] ECR I‑9447, paragraph 34). | 34. It follows from Article 1(11) of Directive 98/34 that the definition of ‘technical regulation’ can be broken down into three categories: first, the ‘technical specification’ within the meaning of Article 1(3) of that directive; second, the ‘other requirement’, as defined in Article 1(4); and, third, the prohibition of the manufacture, importation, marketing or use of a product referred to in Article 1(11) (see, in particular, Case C‑267/03 Lindberg [2005] ECR I‑3247, paragraph 54). | 19. So far as (ii) the criterion of independence is concerned, it is apparent from the documents before the Court that the Tribunal Català de Contractes del Sector Públic acts as a third party in relation to the authority which adopted the decision challenged in the main proceedings (see judgments in Corbiau , C‑24/92, EU:C:1993:118, paragraph 15, and Wilson , C‑506/04, EU:C:2006:587, paragraph 49). In that regard, it would appear that the Tribunal carries out its functions in a wholly independent manner, not occupying a hierarchical or subordinate position in relation to any other body and not taking orders or instructions from any source whatsoever (see judgment in Torresi , C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 22); it is thus protected against external intervention or pressure liable to jeopardise the independent judgment of its members (judgments in Wilson , C‑506/04, EU:C:2006:587, paragraph 51, and TDC , C‑222/13, EU:2014:2265, paragraph 30). |
32. The answer to that question depends on an overall assessment of all the specific circumstances of the case (see Euro Tyre Holding , paragraph 27), and, in particular, on the determination of the moment at which the right to dispose of the goods as owner was transferred to the final recipient (see Euro Tyre Holding , paragraphs 31 to 35). In a situation where the second transfer of the power to dispose of the goods as owner took place before the intra-Community transport had occurred, the intra-Community transport could no longer be ascribed to the first supply to the first person acquiring the goods (see Euro Tyre Holding , paragraph 33). | 31. As regards, first of all, the transfer of the right to dispose of the goods as owner in the context of supplies effected successively, it should be borne in mind that the Court held, in paragraph 38 of EMAG Handel Eder , that the intermediary acquiring the goods can transfer the right to dispose of the goods as owner to the second person acquiring the goods only if it has previously been transferred to him by the first vendor. | 33. Even though Article 2(1) of the basic regulation sets out the general principle that the normal value is normally to be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting countries, it does not follow from either the wording or the scheme of Article 2(7) of that regulation or from the Court’s case‑law that, when the institutions of the European Union determine the normal value ‘on any other reasonable basis’, that normal value must always correspond to the normal value at which the product is supplied to the first independent customer. Such an interpretation would undermine the discretion granted to the institutions of the European Union when determining the normal value in respect of non-market-economy countries (see, to that effect, Ikea Wholesale , paragraph 40). |
64. As is apparent from Case 81/72 Commission v Council , paragraphs 3 and 4; Case 70/74 Commission v Council [1975] ECR 795, paragraph 7; and Case 59/81 Commission v Council , paragraph 8, the Council decided, first of all, in 1972, to apply, as an experiment and for a period of three years, a system of adjustment of remuneration involving recourse to two specific indices, while rejecting the automatic application of an arithmetical mean between the two indices which were adopted. In the light of that approach, the Court held that, by its decision, the Council, acting within the framework of the powers relating to the remunerations of the staff conferred on it by Article 65 of the Staff Regulations, assumed obligations which it has bound itself to observe for the period it has defined (see Case 81/72 Commission v Council , paragraphs 8 and 9; Case 70/74 Commission v Council , paragraphs 20 to 22; and Case 59/81 Commission v Council , paragraph 8). | 4 ON 20 AND 21 MARCH 1972, THE COUNCIL DECIDED TO APPLY, AS AN EXPERIMENT AND FOR A PERIOD OF THREE YEARS, A " SYSTEM OF ADJUSTING REMUNERATIONS ", INVOLVING RECOURSE TO THE SAID TWO INDICES FOR THE RISE IN THE PURCHASING POWER OF REMUNERATIONS .
IT EMERGES FROM THE MINUTES OF THESE PROCEEDINGS THAT THE COUNCIL, REJECTING THE AUTOMATIC APPLICATION OF THE ARITHMETICAL MEAN BETWEEN THE TWO INDICES WHICH WERE ADOPTED, DEFINED THEIR OPERATION AS FOLLOWS : " DECISION EACH YEAR BY THE COUNCIL IN THE LIGHT OF THESE TWO INDICES . IN THE COURSE OF THE THIRD YEAR, THIS METHOD OF CALCULATION SHALL BE CHECKED BY A THOROUGH STUDY OF THE TOTAL NATIONAL EMOLUMENTS AND THE TOTAL COMMUNITY EMOLUMENTS, TO VERIFY THE VALIDITY OF THE SYSTEM AND TO CARRY OUT ANY NECESSARY STRUCTURAL ADJUSTMENTS ". | 137. Moreover, in view of the fact, stated in the order for reference and referred to at paragraph 24 of this judgment, that the United Kingdom has not adopted specific rules to implement the third sentence of Article 11 of Directive 2004/48, the referring court will, when applying national law, be required to do so, as far as possible, in the light of the wording and the purpose the third sentence of Article 11 (see, by analogy, Case C‑106/89 Marleasing [1990] ECR I-4135, paragraph 8, Joined Cases C‑378/07 to C-380/07 Angelidaki and Others [2009] ECR I-3071, paragraph 106). |
48. According to settled case-law, that concept covers every type of insurance incorporating a voluntary element, whether or not there is any continuance of existing insurance (see judgments in Liégeois , EU:C:1977:50, paragraphs 12 to 14, and Hartmann Troiani , 368/87, EU:C:1989:206, paragraph 12). | 14 THE DIFFERENT EXPRESSIONS USED ANYHOW SHOW AN INTENTION TO COVER EVERY TYPE OF INSURANCE INCORPORATING A VOLUNTARY ELEMENT AND IT MATTERS LITTLE WHETHER THERE IS ANY CONTINUANCE OF EXISTING INSURANCE OR NOT .
| 58. Those considerations are moreover reflected in paragraphs 81 and 83 of Philips , which state that the existence of other shapes which could achieve the same technical result does not in itself preclude application of the ground for refusal set out in the second indent of Article 3(1)(e) of Directive 89/104, whose wording corresponds to that of Article 7(1)(e)(ii) of Regulation No 40/94. |
100. According to the Court’s case-law, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure ( Musique Diffusion Française and Others v Commission , paragraph 121, and Dansk Rørindustri and Others v Commission , paragraph 243). | 243. It follows that, on the one hand, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure (see Musique Diffusion française and Others v Commission , paragraph 121, and Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 111). | 66. The Court has also held that a Member State is, in principle, free to prevent the imposition of a series of charges to tax on dividends received by a resident company by opting for the exemption method when the dividends are paid by a resident company and for the imputation method when they are paid by a non-resident company. Those two methods are in fact equivalent provided, however, that the tax rate applied to foreign-sourced dividends is not higher than the rate applied to nationally-sourced dividends and that the tax credit is at least equal to the amount paid in the State of the company making the distribution, up to the limit of the tax charged in the Member State of the company receiving the dividends (judgment in Test Claimants in the FII Group Litigation , EU:C:2012:707, paragraph 39 and the case-law cited). |
92 As the Advocate General observes in points 100 and 101 of his Opinion, Directive 89/552 concerns matters covered by public policy, public morality or public security, and, inasmuch as the rules which it lays down are not exhaustive, the protection of those interests cannot in any event justify a general system of prior authorization of programmes coming from other Member States, which would entail abolition of the freedom to provide services (Case C-211/91 Commission v Belgium, paragraph 12). | 12 It is therefore appropriate to examine the Commission' s claims concerning the derogations permitted by the national legislation as compared with those provided for by the directive, and those concerning the exclusion of private water supplies from its scope . | 45
It should be pointed out that, in a sector of the public services with a large workforce, such as the public health sector, it is inevitable that temporary replacements will be necessary due, inter alia, to the unavailability of members of staff on sick, maternity, parental or other leave. The temporary replacement of workers in those circumstances may constitute an objective ground within the meaning of clause 5(1)(a) of the framework agreement, justifying fixed-term contracts being concluded with the replacement staff and the renewal of those contracts as new needs arise, subject to compliance with the relevant requirements laid down in the framework agreement (see, to that effect, judgments of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 31, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 92). |
63. In that regard, as the General Court stated in paragraph 722 of the judgment under appeal, any repeated infringement is among the factors to be taken into consideration in the analysis of the gravity of the infringement in question (see Aalborg Portland and Others v Commission , paragraph 91, and Groupe Danone v Commission , paragraph 26). | 91. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements. | 37 To reply to that question, as reformulated, it should first be noted that a body such as Deutsche Post, which has been granted exclusive rights as regards the collection, carriage and delivery of mail, must be regarded as an undertaking to which the Member State concerned has granted exclusive rights within the meaning of Article 90(1) of the Treaty (Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 8). |
33 As the Court has consistently held (see in particular Case C-93/90 Cassamali v Office National des Pensions [1990] ECR I-1401, paragraphs 15 and 16), Article 51(1) must be interpreted as meaning that, in order to reduce the administrative burden which a fresh examination of the worker' s situation following every alteration of benefits would represent, it excludes a recalculation of benefits in accordance with Article 46 of the Regulation when the alteration which affects one of the benefits results from events unconnected with the worker' s personal circumstances and is the consequence of the general evolution of the economic and social situation. Only when the adjustment is due to an alteration of the method of determination or the rules for calculating a benefit by reason, inter alia, of a change in the worker' s personal circumstances is it necessary under Article 51(2) to carry out a recalculation of the old-age benefits. | 15 In the same judgment, however, the Court stated that, in order to reduce the administrative burden which a fresh examination of the worker' s situation following every alteration of benefits would represent, Article 51(1) of Regulation No 1408/71 excluded a recalculation of benefits in accordance with Article 46 and, hence, a fresh comparison between the national system and the Community system when the alteration which affected one of the benefits resulted from events unconnected with the worker' s personal circumstances and was the consequence of the general evolution of the economic and social situation. | 41. In particular, Article 5 of the Directive confers on the trade mark proprietor exclusive rights which entitle him inter alia to prevent any third party from importing goods bearing the mark, offering the goods, or putting them on the market or stocking them for these purposes. Article 7(1) of the Directive contains an exception to that rule, in that it provides that the trade mark proprietor’s rights are exhausted where the goods have been put on the market in the EEA by him or with his consent ( Zino Davidoff and Levi Strauss , paragraph 40; Case C-244/00 Van Doren + Q [2003] ECR I-3051, paragraph 33; and Case C-16/03 Peak Holding [2004] ECR I‑11313, paragraph 34). |
54 Finally, as regards the ground concerning distortion of evidence, it should be noted that, whilst it is for the Court of First Instance alone to assess the value which should be attached to the items of evidence produced to it (see, in particular, Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 66), the Court of Justice has none the less held that such a ground is admissible (see Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42, Case C-362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I-4775, paragraph 29, Case C-55/97 P AIUFFASS and AKT v Commission [1997] ECR I-5383, paragraph 25, and Case C-140/96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 35). | 29 In any event, as the Court of Justice has repeatedly held, it is for the Court of First Instance alone to assess the value which should be attached to the items of evidence adduced before it (judgment in Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 66; order in San Marco v Commission, cited above, paragraph 40). That appraisal does not, therefore, save where the sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (judgment in Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42). | 31. It is true that the existence of such a link, which must be assessed globally taking into account all factors relevant to the circumstances of the case (see judgment in Intel Corporation , C‑252/07, EU:C:2008:655, paragraph 41), is not sufficient, in itself, to establish that there is one of the types of injury referred to in Article 4(3) of Directive 2008/95 (see, by analogy, Intel Corporation , C‑252/07, EU:C:2008:655, paragraph 32). In order to benefit from the protection introduced by that provision, the proprietor of the earlier mark must adduce proof that the use of the later mark ‘would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark’ and therefore show that there is either actual and present injury to its mark for the purposes of Article 4(3) of Directive 2008/95 or, failing that, a serious risk that such injury may occur in the future. In such a case, it is for the proprietor of the later mark to establish that there is due cause for the use of that mark (see, by analogy, judgment in Intel Corporation , C‑252/07, EU:C:2008:655, paragraphs 37 and 39). |
21 In that respect, it is sufficient to note, as the Court declared in Case C-44/89 von Deetzen v Hauptzollamt Oldenburg [1991] ECR I-5119, paragraph 21, that whilst producers who had entered into a non-marketing or conversion undertaking under Regulation No 1078/77 were legitimately entitled to expect to be able to resume the marketing of milk at the end of their non-marketing or conversion period and to carry on that activity under conditions that involved no discrimination between them and other milk producers, they could not thereby expect a common organization of the market to confer on them a commercial advantage which did not derive from their farming activity. | 21 The second subparagraph of Article 3a(4) of Regulation No 857/84, as amended, does not give rise, for the producers concerned, to specific restrictions of that kind which are incompatible with the requirements of protection of their legitimate expectations. Whilst those producers were legitimately entitled to expect to be able to resume the marketing of milk at the end of their non-marketing or conversion period, and to carry on that activity under conditions that involved no discrimination between them and other milk producers, they could not thereby expect that a common organization of the market would confer on them a commercial advantage which did not derive from their occupational activity. Those producers could not therefore expect to be in a position to dispose, for profit, of an advantage, such as the allocation of a reference quantity under the additional levy scheme, when that advantage had been conferred on them specifically in order to enable them to resume their occupational activity. | 38. 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 PreussenElektra , paragraph 39, and Zablocka‑Weyhermüller , paragraph 20). |
27. It is also settled case-law that, in contrast to a quantity discount linked solely to the volume of purchases from the manufacturer concerned, which is not, in principle, liable to infringe Article 82 EC, a loyalty rebate, which by offering customers financial advantages tends to prevent them from obtaining all or most of their requirements from competing manufacturers, amounts to an abuse within the meaning of that provision (see judgments in Nederlandsche Banden-Industrie-Michelin v Commission , 322/81, EU:C:1983:313, paragraph 71, and Tomra Systems and Others v Commission , C‑549/10 P, EU:C:2012:221, paragraph 70). | 70. In the event that an undertaking in a dominant position makes use of a system of rebates, the Court has ruled that that undertaking abuses that position where, without tying the purchasers by a formal obligation, it applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of loyalty rebates, that is to say, discounts conditional on the customer’s obtaining — whether the quantity of its purchases is large or small — all or most of its requirements from the undertaking in a dominant position (see Case 85/76 Hoffman‑La Roche [1979] ECR 461, paragraph 89, and Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461, paragraph 71). | 56. Furthermore, where failure to comply with a judgment of the Court is likely to harm the environment, the protection of which is one of the European Union’s policy objectives, as is apparent from Article 191 TFEU, such a breach is of a particularly serious nature (see judgment of 19 December 2012 in Case C‑279/11 Commission v Ireland , paragraph 72 and the case-law cited). |
59
As regards measures for the prevention of fraud and abuse within the meaning of Article 1(2) of the Parent-Subsidiary Directive, it should be noted that, since that provision provides for an exception to the general rules laid down by the directive, namely the common tax rules applicable to parent companies and subsidiaries coming within the scope of the directive, it must be subject to strict interpretation (see, to that effect, judgments of 24 June 2010, P. Ferrero e C. and General Beverage Europe, C‑338/08 and C‑339/08, EU:C:2010:364, paragraph 45, and of 8 March 2017, Euro Park Service, C‑14/16, EU:C:2017:177, paragraph 49 and the case-law cited). | 49
Since that provision provides an exception to the general rules laid down by Directive 90/434, namely the common tax rules applicable to operations coming within the scope of that same directive, it must be subject to strict interpretation (see, to that effect, judgment of 20 May 2010, Modehuis A. Zwijnenburg, C‑352/08, EU:C:2010:282, paragraph 46). | 13
In its judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraphs 59 and 60), the Court of Justice, hearing an appeal against the judgment of 7 November 2012, Syndicat des thoniers méditerranéens and Others v Commission (T‑574/08, not published, EU:T:2012:583), held that the General Court had, in that judgment, misinterpreted the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), in holding that, by the latter judgment, the Court of Justice had declared Regulation No 530/2008 to be invalid in its entirety. In that regard, the Court of Justice made clear that the judgment in AJD Tuna had declared Regulation No 530/2008 invalid only to the extent that it granted more favourable treatment to Spanish seiners, but had upheld the validity of the date of the prohibition of bluefin tuna fishing set in Article 1 of Regulation No 530/2008 for purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta. |
22. The second preliminary point to note is that, given the objectives of the Directive and in particular the fact that, as the second recital in the preamble to Directive 97/55 points out, comparative advertising helps to demonstrate objectively the merits of the various comparable products and thus stimulate competition between suppliers of goods and services to the consumer’s advantage, it is settled case-law that the conditions required of comparative advertising must be interpreted in the sense most favourable to it (Case C-112/99 Toshiba Europe [2001] ECR I‑7945, paragraphs 36 and 37, and Case C-44/01 Pippig Augenoptik [2003] ECR I‑3095, paragraph 42; see also Case C-59/05 Siemens [2006] ECR I-0000, paragraphs 22 to 24).
Order in which the questions are to be examined | 42. Thus, the provisions of Directive 84/450 on the conditions for comparative advertising to be lawful on the one hand refer to Article 7(1), as regards the definition of misleading advertising (Article 3a(1)(a)) and, on the other hand, exclude the application of that same provision (Article 7(2)). Faced with that apparent textual contradiction, those provisions must be interpreted in such a way as to take account of the objectives of Directive 84/450 and in the light of the case-law of the Court according to which the conditions required of comparative advertising must be interpreted in the sense most favourable to it (Toshiba Europe , paragraph 37). | 68. It is true that the right to good administration, enshrined in that provision, reflects a general principle of EU law (judgment in HN , C‑604/12, EU:C:2014:302, paragraph 49). However, by their questions in the present cases, the referring courts are not seeking an interpretation of that general principle, but ask whether Article 41 of the Charter may, in itself, apply to the Member States of the European Union. |
33. Since the Commission seeks the imposition of a penalty payment on the Italian Republic, it must be ascertained whether the alleged breach of obligations has continued up to the Court's examination of the facts (see Case C‑304/02 Commission v France, paragraph 31, and Case C-177/04 Commission v France, paragraph 21). | 21. By letter of 16 October 2001, the French authorities sent to the Commission a copy of an instruction addressed to the regional and departmental maritime directorates, enjoining them to put an end to use of the code ‘00’ by 31 December 2001 and to apply from that date the statutory penalties to economic operators not complying with the instruction. The French authorities referred to an increase since 1998 in the number of proceedings for infringement of the rules on minimum sizes and to the deterrent effect of the penalties imposed. They also informed the Commission of the adoption in 2001 of a general fisheries control plan, which laid down priorities, including implementation of a hake recovery plan and strict control of compliance with minimum sizes. | 53. In that context, it should be borne in mind that, in relation to a loyalty rewards scheme whereby an oil company handed over goods to purchasers of fuel in exchange for points which those purchasers had obtained, the number dependent on the quantity of fuel purchased, by paying the retail price at the pump, the Court held that the oil company could not reasonably maintain that the price paid by the purchasers of fuel in fact contained an element representing the value of the points or the goods supplied in exchange for those points because the fuel purchaser, whether he took the points or not, had to pay the same retail price (see, to that effect, Case C‑48/97 Kuwait Petroleum [1999] ECR I‑2323, paragraph 31). |
20. In that regard, it is apparent from settled case-law that the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001 covers all actions which seek to establish the liability of a defendant and which do not concern ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of the regulation (see to that effect, inter alia, Case 189/87 Kalfelis [1988] ECR 5565, paragraph 17). | 17 In order to ensure uniformity in all the Member States, it must be recognized that the concept of "matters relating to tort, delict and quasi-delict" covers all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5 ( 1 ). | 25. It follows that, if the Community and the African States and Madagascar associated with the Community had intended to address the problem of the internal taxation of unlike products which are in competition with each other, instead of adopting a provision which was similar only to the first paragraph of Article 90 EC, they would have adopted a provision which was also modelled on the second paragraph of Article 90 EC (see, by analogy, Case C‑469/93 Chiquita Italia [1995] ECR I‑4533, paragraph 43). |
55
Accordingly, the procedure is necessarily vitiated, regardless of any possible detrimental consequences for Ferriere Nord that could result from that infringement (see, to that effect, judgments of 6 November 2012, Commission v Éditions Odile Jacob, C‑553/10 P and C‑554/10 P, EU:C:2012:682, paragraphs 46 to 52, and of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 36). | 52. Given that the General Court correctly found that the trustee was not independent of the parties, it was under no obligation to examine whether that trustee actually acted in a way which was evidence of that lack of independence. | 38
In so far as the referring court has doubts as to the possibility, in view of the presumption of innocence, of finding that the travel agencies were aware, or ought to have been aware, of the message at issue in the main proceedings, it must be recalled that the presumption of innocence constitutes a general principle of EU law, now enshrined in Article 48(1) of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment in E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 72), which the Member States are required to observe when they implement EU competition law (see, to that effect, judgments in VEBIC, C‑439/08, EU:C:2010:739, paragraph 63, and N., C‑604/12, EU:C:2014:302, paragraph 41). |
45
Given that Article 6(2) of Regulation No 44/2001 requires a link between, on the one hand, the original proceedings and, on the other hand, the third party proceedings or the action on a warranty or guarantee to which it refers, it is for the national court seised of the original claim to ascertain whether such a connection exists, in the sense that it must satisfy itself that the third party proceedings or the action on a warranty or guarantee do not seek to remove the defendant from the jurisdiction of the court which would be competent in the case (see, to that effect, judgment in GIE Réunion européenne and Others, C‑77/04, EU:C:2005:327, paragraphs 30 and 32). | 32. It is for the national court seised of the original claim to verify the existence of such a connection, in the sense that it must satisfy itself that the third-party proceedings do not seek to remove the defendant from the jurisdiction of the court which would be competent in the case. | 87. This concept of ‘objective reasons’ in clause 5(1)(a) of the Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (judgment in Kücük , EU:C:2012:39, paragraph 27 and the case-law cited). |
35. Accordingly, where it is apparent that they are contrary to the wording of the headings of the CN and the section or chapter notes, the Explanatory Notes to the CN must be disregarded (see, to that effect, Case C‑229/06 Sunshine Deutschland Handelsgesellschaft [2007] ECR I‑3251, paragraph 31; Kamino International Logistics , paragraphs 49 and 50; and British Sky Broadcasting Group and Pace , paragraph 65). | 65. Accordingly, where it is apparent that they are contrary to the wording of the headings of the CN and the section or chapter notes, the Explanatory Notes to the CN must be disregarded (see Case C-229/06 Sunshine Deutschland Handelsgesellschaft [2007] ECR I-3251, paragraph 31; Case C‑312/07 JVC France [2008] ECR I-4165, paragraph 34; and Kamino International Logistics , paragraphs 49 and 50). | 25. However, it is also settled that the fundamental characteristic of a letting of immovable property for the purposes of Article 13B(b) of the Sixth Directive lies in conferring on the person concerned, for an agreed period and for payment, the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right (see, to that effect, "Goed Wonen" , paragraph 55, and Case C-108/99 Cantor Fitzgerald International [2001] ECR I-7257, paragraph 21). |
24. That fact, however, is not decisive. It cannot be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the national legislation at issue as regards the aim pursued has the effect of excluding automatically the possibility that that national legislation may be justified under that provision. In the absence of such precision, it is important that other elements, derived from the general context of the measure concerned, should make it possible to identify the underlying aim of that measure for the purposes of review by the courts as to whether it is legitimate and as to whether the means put in place to achieve it are appropriate and necessary (see Joined Cases C-159/10 and C-160/10 Fuchs and Köhler [2011] ECR I-6919, paragraph 39 and the case-law cited). | 39. In that regard, the Court has repeatedly held that it cannot be inferred from Article 6(1) of Directive 2000/78 that the lack of precision in the legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision. In the absence of such precision, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (Case C‑411/05 Palacios de la Villa [2007] ECR I‑8531, paragraphs 56 and 57; Case C‑341/08 Petersen [2010] ECR I‑0000, paragraph 40; and Case C‑45/09 Rosenbladt [2010] ECR I‑0000, paragraph 58). | 48. Thus, the purpose of the prohibition laid down by Article 2(1) of Directive 2003/6 is to ensure equality between the contracting parties in stock-market transactions by preventing one of them who possesses inside information and who is, therefore, in an advantageous position vis-à-vis other investors, from profiting from that information, to the detriment of those who are unaware of it (see, by analogy, Case C‑391/04 Georgakis [2007] ECR I‑3741, paragraph 38). |
43 That definition of the term `onset of the employer's insolvency' cannot, however, preclude the option available to the Member States, acknowledged in Article 9 of the Directive, of applying or introducing provisions that are more favourable to employees, in particular for the purpose of including unpaid remuneration during a period subsequent to the lodging of a request that proceedings to satisfy collectively the claims of creditors be opened (see also the judgment of today's date in Case C-373/95 Maso and Others [1997] ECR I-0000, paragraphs 46 to 52). | 46 Although the occurrence of those two events referred to in Article 2(1) of the Directive is a condition precedent for the guarantee provided for in the Directive to come into play, nevertheless it cannot serve to identify the outstanding claims which are subject to the guarantee. That question is governed by Articles 3 and 4 of the Directive, which necessarily refer to a single date prior to which the reference periods specified in those articles must run. | 29. None the less, the measures must not go further than is necessary to attain the objectives thereby pursued and may not, therefore, be used in such a way that they would have the effect of undermining the neutrality of VAT, which is a fundamental principle of the common system of VAT established by the relevant European Union law (see Stadeco , paragraph 39, and the case-law cited). |
59 Contrary to what the Commission suggests in its written observations, Article 10(2) of the directive must not be applied where determination of normal residence meets with difficulties in a particular case. That provision, which requires the competent authorities of the Member States, where the practical application of the directive gives rise to difficulties, to take the necessary decisions by mutual agreement, is intended to enable them to cope with any future difficulties which may arise in individual specific cases. It does not require them to cooperate in each individual case in which the application of that directive raises difficulties (Ryborg, cited above, paragraphs 34 and 35). | 35 It must therefore be stated in reply to the second question that Article 10(2) of Directive 83/182 does not require the Member States to cooperate in each individual case in which the application of that directive raises difficulties.
The third question | 29. In this context, it should be borne in mind that the Court has held that the application of a regional development or social cohesion policy cannot in itself enable a measure adopted within the framework of that policy to be regarded as justified by the nature and general scheme of a national tax system (see, to that effect, Case C‑88/03 Portugal v Commission [2006] ECR I‑7115, paragraph 82). |
55. Thus, where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I‑7063, paragraphs 27 to 49, and Case C-319/02 Manninen [2004] ECR I‑7477, paragraphs 29 to 55). | 42. In that respect, it should be noted that, in paragraphs 28 and 21 respectively of the judgments in Bachmann and Commission v Belgium , the Court of Justice acknowledged that the need to preserve the cohesion of a tax system might justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. However, for an argument based on such justification to succeed, a direct link had to be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, to that effect, Case C-484/93 Svensson and Gustavsson [1995] ECR I‑3955, paragraph 18; Asscher , paragraph 58; ICI , paragraph 29; Case C-55/98 Vestergaard [1999] ECR I‑7641, paragraph 24; Case C-436/00 X and Y [2002] ECR I-10829, paragraph 52). As is shown by paragraphs 21 to 23 of the judgment in Bachmann and paragraphs 14 to 16 of the judgment in Commission v Belgium , those judgments are based on the finding that, in Belgian law, there was a direct link, in relation to the same taxpayer liable to income tax, between the ability to deduct insurance contributions from taxable income and the subsequent taxation of sums paid by the insurers. | 63 It is clear from Article 168a of the Treaty and Article 51 of the EC Statute of the Court of Justice that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts (see, in particular, Deere v Commission, cited above, paragraph 21, and New Holland Ford v Commission, cited above, paragraph 25). |
35. It is apparent from the case‑law of the Court on Article 3 of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), the wording of which is identical to that in Article 7 of Regulation No 40/94, that the distinctive character of a mark must always be assessed specifically by reference to the goods or services designated (see, to that effect, Libertel , paragraph 76, and Case C‑363/99 Koninklijke KPN Nederland [2004] ECR I‑1619, paragraphs 31 and 33). | 33. Moreover, since registration of a mark is always sought in respect of the goods or services described in the application for registration, the question whether or not any of the grounds for refusal set out in Article 3 of the Directive apply to the mark must be assessed specifically by reference to those goods or services. | 25. It is settled case-law that, in interpreting a provision of Community law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, Case C‑294/01 Granarolo [2003] ECR I-13429, paragraph 34, and Case C-306/05 SGAE [2006] ECR I-0000, paragraph 34). |
40. However, it should be borne in mind that a prudent trader aware of the rules must, in calculating the benefits from trade in goods likely to enjoy tariff preferences, assess the risks inherent in the market which he is considering and accept them as normal trade risks (see Case 827/79 Acampora [1980] ECR 3731, paragraph 8; Pascoal & Filhos , paragraph 59; and the order in CPL Imperial 2 and Unifrigo v Commission , paragraph 37). | 59 Admittedly, the possibility of verifying the EUR.1 certificate following importation, without the importer being given prior warning, may cause him difficulties where, in good faith, he has imported goods benefiting from preferential tariffs in reliance on certificates which are incorrect or were falsified without his knowledge. It must, however, be pointed out, first, that the European Community cannot be made to bear the adverse consequences of the wrongful acts of suppliers of importers, second, that the importer may seek compensation from the perpetrator of the fraud, and, finally, that, in calculating the benefits from trade in goods likely to obtain tariff preferences, a prudent trader aware of the rules must assess the risks inherent in the market which he is considering and accept them as normal trade risks (see, to this effect, Acampora, cited above, paragraph 8). | 13 As is apparent from the case-law of the Court, the concept of pay within the meaning of the second paragraph of Article 119 comprises any other consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer. The fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay within the meaning of Article 119 of the Treaty (see, in particular, the judgment in Case C-262/88 Barber [1990] ECR I-1889, paragraph 12). |
60. As was stated in paragraph 37 of this judgment, if the national court finds that a criterion is in practice more easily fulfilled by Spanish operators than by those established in another Member State, that criterion infringes the principle of non-discriminatory application (see Gambelli and Others , paragraph 71). | 71. It is for the national court to consider whether the manner in which the conditions for submitting invitations to tender for licences to organise bets on sporting events are laid down enables them in practice to be met more easily by Italian operators than by foreign operators. If so, those conditions do not satisfy the requirement of non-discrimination. | 31. Furthermore, as regards the need for a connection between the recipient of a benefit and the society of the Member State concerned, the Court has already held that, with regard to benefits that are not covered by European Union law, Member States enjoy a wide margin of appreciation in deciding which criteria are to be used when assessing the degree of connection to society (see, to that effect, Case C‑103/08 Gottwald [2009] ECR I‑9117, paragraphs 32 and 34). |
37 It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to 24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19). | 22 As regards the criterion of serious difficulties, the Court also held in the Barber judgment that if any male worker concerned could, like Mr Barber, retroactively assert the right to equal treatment in cases of discrimination which, until then, could have been considered permissible in view of the exceptions provided for in Directive 86/378, the financial balance of many occupational schemes might be upset retroactively (paragraph 44). | 21. Par ailleurs, la Cour a itérativement jugé que des restrictions à la liberté d’établissement ainsi qu’à la libre prestation des services visées respectivement aux articles 43 CE et 49 CE sont constituées par des mesures qui interdisent, gênent ou rendent moins attrayant l’exercice de ces libertés (voir, en ce sens, arrêts du 15 janvier 2002, Commission/Italie, C‑439/99, Rec. p. I‑305, point 22; du 30 mars 2006, Servizi Ausiliari Dottori Commercialisti, C‑451/03, Rec. p. I‑2941, point 31, et du 26 octobre 2006, Commission/Grèce, C‑65/05, Rec. p. I‑10341, point 48). |
22. According to settled case‑law, the necessity of uniform application and, accordingly, of uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires it to be interpreted on the basis of both the real intention of its author and the aim pursued by the latter, in the light, in particular, of the versions in all the other official languages (see, inter alia, Case C‑569/08 Internetportal und Marketing [2010] ECR I‑4871, paragraph 35, and Case C‑52/10 Eleftheri tileorasit and Giannikos [2011] ECR I‑4973, paragraph 23). | 23. According to settled case-law, the need for uniform application and accordingly a uniform interpretation of the provisions of EU law makes it impossible for one version of the text of a provision to be considered, in case of doubt, in isolation, but requires, on the contrary, that it be interpreted and applied in the light of the versions existing in the other official languages (Case C‑63/06 Profisa [2007] ECR I-3239, paragraph 13 and the case-law cited). | 71
As regards the inferences to be drawn from the finding that such a term is unfair, it should be pointed out that it follows from the wording of Article 6(1) of Directive 93/13 that national courts are merely required to exclude the application of an unfair contractual term in order that it may not produce binding effects with regard to the consumer, without being empowered to revise the content of that term. That contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (see, inter alia, judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 65; of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 57; and of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 28). |
70. It should also be borne in mind that, according to the case‑law of the Court of Justice, activities which fall within the exercise of public powers are not of an economic nature justifying the application of the Treaty rules of competition (see, to that effect, Case 107/84 Commission v Germany [1985] ECR 2655, paragraphs 14 and 15; SAT Fluggesellschaft , paragraph 30; and MOTOE , paragraph 24) | 15 IT FOLLOWS THAT , EVEN IF POSTAL ACTIVITIES ARE ASSIGNED TO BODIES GOVERNED BY PUBLIC LAW , ARTICLE 13 AND THE REFERENCE TO IT CONTAINED IN THE FINAL SUBPARAGRAPH OF ARTICLE 4 ( 5 ) ARE NECESSARY TO EXEMPT THE WHOLE OF THOSE ACTIVITIES , OF WHICH ONLY A PART MAY BE REGARDED AS THE ACTIVITIES OF A PUBLIC AUTHORITY IN THE STRICT SENSE . IT IS THEREFORE INCORRECT TO STATE THAT THE EXEMPTION PROVIDED FOR BY ARTICLE 13 WOULD BE DEPRIVED OF ANY MEANING IF IT ONLY APPLIED TO THE ACTIVITIES OF A BODY GOVERNED BY PUBLIC LAW .
| 53. Article 7 of Directive 2004/38, which concerns the right of residence for more than three months, likewise requires that the family members of a Union citizen who are not nationals of a Member State ‘accompany’ or ‘join’ him in the host Member State in order to enjoy a right of residence there (judgment in Metock and Others , C‑127/08, EU:C:2008:449, paragraph 86). |
26 It must also be borne in mind that, as the Court has consistently held since its judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, 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, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. The judgments of the Court in Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8, and Case C-334/92 Wagner Miret v Fondo de Garantía Salarial [1993] ECR I-6911, paragraph 20, make it clear that, when applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty. | 20 Thirdly, it should be borne in mind that when it interprets and applies national law, every national court must presume that the State had the intention of fulfilling entirely the obligations arising from the directive concerned. As the Court held in its judgment in Case 106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty. | 47. If the interpretation advocated by the Commission were to be accepted, transactions which were substantively identical would be treated differently for the purposes of levying VAT depending on whether or not they were part of the taxable person’s normal and usual business. Such a practice would be contrary to the VAT system’s objectives of ensuring legal certainty and facilitating application of the tax by having regard, save in exceptional cases, to the objective character of the transaction in question (see, to that effect, Case C‑4/94 BLP Group [1995] ECR I‑983, paragraph 24). |
129. Even acts of the authorities of the Member States which do not have binding force may be capable of influencing the conduct of undertakings and thus of frustrating the aims pursued by Article 21 TFEU. That would be the case if a tariff practice adopted by insurance companies represented the implementation of a ‘political’ agreement defined by the Netherlands Government and intended to ensure the continuity of the overall protection of residents alone, to the exclusion of non‑residents (see, by analogy, Case 249/81 Commission v Ireland [1982] ECR 4005, paragraphs 27 to 29). | 29 THAT IS THE CASE WHERE , AS IN THIS INSTANCE , SUCH A RESTRICTIVE PRACTICE REPRESENTS THE IMPLEMENTATION OF A PROGRAMME DEFINED BY THE GOVERNMENT WHICH AFFECTS THE NATIONAL ECONOMY AS A WHOLE AND WHICH IS INTENDED TO CHECK THE FLOW OF TRADE BETWEEN MEMBER STATES BY ENCOURAGING THE PURCHASE OF DOMESTIC PRODUCTS , BY MEANS OF AN ADVERTISING CAMPAIGN ON A NATIONAL SCALE AND THE ORGANIZATION OF SPECIAL PROCEDURES APPLICABLE SOLELY TO DOMESTIC PRODUCTS , AND WHERE THOSE ACTIVITIES ARE ATTRIBUTABLE AS A WHOLE TO THE GOVERNMENT AND ARE PURSUED IN AN ORGANIZED FASHION THROUGHOUT THE NATIONAL TERRITORY .
| 43. It is, however, clear from that glossary that, under the supervision of the Commission, the Member States had in various ways defined the documents which they considered could be served pursuant to that regulation (see judgment in Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraph 47) including in the category of extrajudicial documents, as the Advocate General has stated in point 36 of his Opinion, not only documents emanating from a public authority or official, but also private documents of specific importance within a given legal system. |
48. That last measure was specifically examined in Sturgeon and Others , in which the Court stated, first, that loss of time constitutes an inconvenience covered by Regulation No 261/2004, like the other inconveniences which the measures laid down by that regulation must redress. Second, it found that that inconvenience must be redressed by means of compensating the passengers concerned pursuant to that regulation (see, to that effect, Sturgeon and Others , paragraphs 52 and 61). | 52. Regulation No 261/2004 has, in those measures, the objective of repairing, inter alia, damage consisting, for the passengers concerned, in a loss of time which, given that it is irreversible, can be redressed only by compensation. | 35. That finding is also corroborated by the case-law of the Court of Justice on mutual assistance between the competent authorities in the area of direct taxation, which is transposable by analogy to a situation such as that in the main proceedings. According to that case-law, the mutual assistance directive may be relied on by a Member State in order to obtain from the competent authorities of another Member State all the information enabling it to ascertain the correct amount of tax. There is, however, nothing to prevent the tax authorities concerned from requiring the taxpayer himself to provide such proof as they may consider necessary in order to determine whether or not the deduction requested should be granted (see, to that effect, Case C-55/98 Vestergaard [1999] ECR I-7641, paragraph 26; Case C-136/00 Danner [2002] ECR I-8147, paragraphs 49 and 50). |
19 Moreover, as regards the national court's alleged lack of jurisdiction, it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure (Case 65/81 Reina [1982] ECR 33, paragraph 7; Case C-10/92 Balocchi [1993] ECR I-5105, paragraph 16; and Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 24). | 24 As regards the national court' s alleged lack of jurisdiction, it should be recalled that it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organization of the courts and their procedure. The Court must therefore abide by the decision from a court of a Member State requesting a preliminary ruling in so far as it has not been overturned in any appeal procedures provided for by national law (see Case C-10/92 Balocchi v Ministero delle Finanze [1993] ECR I-5105, paragraphs 16 and 17, and Case 65/81 Reina v Landeskreditbank Baden-Wuerttemberg [1982] ECR 33, paragraphs 7 and 8). | 96
According to settled case-law, a provision in an agreement concluded by the Union with a non-member State must be regarded as having direct effect where, regard being had to its wording and to the purpose and nature of that agreement, the provision lays down a clear and precise obligation which is not subject, in its implementation or its effects, to the adoption of any subsequent measure (see, to that effect, inter alia, judgments of 27 September 2001, Gloszczuk, C‑63/99, EU:C:2001:488, paragraph 30; of 8 May 2003, Wählergruppe Gemeinsam, C‑171/01, EU:C:2003:260, paragraph 54; of 12 April 2005, Simutenkov, C‑265/03, EU:C:2005:213, paragraph 21, and of 14 December 2006, Gattoussi, C‑97/05, EU:C:2006:780, paragraph 25). |
16 IN THAT CONNECTION IT SHOULD BE RECALLED THAT IN PARAGRAPH 3 OF THE OPERATIVE PART OF ITS JUDGMENT OF 15 OCTOBER 1980 , THE COURT HELD , FOR THE REASONS STATED IN PARAGRAPHS 51 AND 52 OF THAT DECISION , THAT :
' THE FACT THAT THE ABOVE-MENTIONED PROVISIONS ARE INVALID DOES NOT ENABLE THE CHARGING OR PAYMENT OF MONETARY COMPENSATORY AMOUNTS BY THE NATIONAL AUTHORITIES ON THE BASIS OF THOSE PROVISIONS TO BE CHALLENGED AS REGARDS THE PERIOD PRIOR TO THE DATE OF THIS JUDGMENT . ' | 51 ALTHOUGH THE TREATY DOES NOT EXPRESSLY LAY DOWN THE CONSEQUENCES WHICH FLOW FROM A DECLARATION OF INVALIDITY WITHIN THE FRAMEWORK OF A REFERENCE TO THE COURT FOR A PRELIMINARY RULING , ARTICLES 174 AND 176 CONTAIN CLEAR RULES AS TO THE EFFECTS OF THE ANNULMENT OF A REGULATION WITHIN THE FRAMEWORK OF A DIRECT ACTION . THUS ARTICLE 176 PROVIDES THAT THE INSTITUTION WHOSE ACT HAS BEEN DECLARED VOID SHALL BE REQUIRED TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT OF JUSTICE . IN ITS JUDGMENTS OF 19 OCTOBER 1977 IN JOINED CASES 117/76 AND 16/77 ( ALBERT RUCKDESCHEL & CO . AND HANSA-LAGERHAUS STROH & CO . ( 1977 ) ECR 1753 ) AND IN JOINED CASES 124/76 AND 20/77 ( MOULINS ET HUILERIES DE PONT-A-MOUSSON AND PROVIDENCE AGRICOLE DE LA CHAMPAGNE , ( 1977 ) ECR 1795 ) THE COURT HAS ALREADY REFERRED TO THAT RULE WITHIN THE CONTEXT OF A REFERENCE TO IT FOR A PRELIMINARY RULING .
| 24. In that context, the Court has already stated on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary to that end ( Aziz , EU:C:2013:164, paragraph 46, and Barclays Bank , EU:C:2014:279, paragraph 34). |
84. In so far as Activision Blizzard claims, in the alternative, that insufficient reasons were stated for the judgment under appeal, it should be borne in mind that, according to established case-law, the obligation to state reasons does not require the General Court to provide an account which addresses exhaustively, one after the other, all the arguments put forward by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the General Court’s decision and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, the judgment of 22 May 2008 in Case C-266/06 P Evonik Degussa v Commission , paragraph 103, and Case C-583/08 P Gogos v Commission [2010] ECR I-0000, paragraph 30 and the case-law cited). | 30. It is clear from established case-law that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, in particular, Case C‑16/07 P Chetcuti v Commission [2008] ECR I‑7469, paragraph 87, and Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑0000, paragraph 135). | 72. A restriction on the freedom of establishment and the freedom to provide services may be justified where it serves overriding requirements relating to the public interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see, inter alia, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 61; Case C-250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraph 39; and Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 55). |
27. As regards the obligation to ensure the effectiveness of the protection afforded by the Directive with regard to the penalising of an unfair term, the Court has already stated that it is for the national court to establish all the consequences, arising under national law, of a finding that a term is unfair in order to ensure that the consumer is not bound by that term ( Asturcom Telecomunicaciones , paragraph 59). The Court has, however, stated that the national court is not required under the Directive to exclude the possibility that the term in question may be applicable if the consumer, after having been informed of it by that court, does not intend to assert its unfair or non-binding status (see Pannon GSM , paragraphs 33 and 35). | 35. The reply, therefore, to the second question is that the national court is required to examine, of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non-application. That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction.
The third question | 31 It should next be borne in mind that, according to the Court' s case-law, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the act in question (see in particular Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19). |
60. The rights thus conferred on consumers by Article 3 of the Directive, which do not seek to place consumers in a more favourable position than they could claim under the contract of sale, but merely to re-establish the situation which would have prevailed if the seller had delivered goods in conformity at the outset, are, pursuant to Article 7 of the Directive, binding on the seller. Furthermore, as follows from Article 8(2) of the Directive, the protection provided by it is a minimum and, although Member States may adopt more stringent provisions, they may not undermine the guarantees laid down by the European Union legislature (see Quelle, paragraph 36). | 36. That interpretation is also consistent with the purpose of the Directive which, as stated in the first recital in the preamble thereto, is to ensure a high level of consumer protection. As follows from Article 8(2) of the Directive, the protection provided by it is minimal and, although Member States may adopt more stringent provisions, they may not undermine the guarantees laid down by the Community legislature. | 41. In particular, Article 5 of the Directive confers on the trade mark proprietor exclusive rights which entitle him inter alia to prevent any third party from importing goods bearing the mark, offering the goods, or putting them on the market or stocking them for these purposes. Article 7(1) of the Directive contains an exception to that rule, in that it provides that the trade mark proprietor’s rights are exhausted where the goods have been put on the market in the EEA by him or with his consent ( Zino Davidoff and Levi Strauss , paragraph 40; Case C-244/00 Van Doren + Q [2003] ECR I-3051, paragraph 33; and Case C-16/03 Peak Holding [2004] ECR I‑11313, paragraph 34). |
27. In any event, it must be pointed out that whether a conceptual similarity is slight, low or minimal in degree is part of an assessment of the facts of the case. However, the General Court is not bound by such an assessment carried out by the Board of Appeal, as that assessment forms part of the reasons for the decision the legality of which is being disputed before it (see, to that effect, judgment in Éditions Albert René v OHIM , C‑16/06 P, EU:C:2008:739, paragraphs 47 and 48). | 47. Therefore, since the appellant called into question the Board of Appeal’s assessment relating to the likelihood of confusion by virtue of the principle of the interdependence of the factors taken into account, in particular the similarity of the trade marks and that of the goods and services covered, the Court of First Instance was competent to examine the Board of Appeal’s assessment of the similarity of the signs at issue. | 44
In particular, care must be taken to ensure that the effectiveness of Directives 89/665 and 92/13 are not undermined (see judgments of 18 June 2002, HI, C‑92/00, EU:C:2002:379, paragraphs 58 and 59, and of 11 December 2014, Croce Amica One Italia, C‑440/14, EU:C:2014:2435, paragraph 40) or the rights conferred on individuals by EU law (judgments of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 72, and of 28 January 2010, Uniplex (UK), C‑406/08, EU:C:2010:45, paragraph 49). |
74. However, a belated accounting for of VAT cannot, per se, be equated with evasion, which presupposes, first, that the transaction concerned, notwithstanding compliance with the conditions laid down by the relevant provisions of the VAT Directive and the national legislation transposing it, results in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions and, secondly, that it is apparent from a number of objective factors that the essential aim of the transaction concerned is to obtain a tax advantage (see, to that effect, Case C-255/02 Halifax and Others [2006] ECR I-609, paragraphs 74 and 75, and Klub , paragraph 49). | 75. Second, it must also be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain a tax advantage. As the Advocate General observed in point 89 of his Opinion, the prohibition of abuse is not relevant where the economic activity carried out may have some explanation other than the mere attainment of tax advantages. | 53. Lastly, in paragraph 46 of Commission v Italy , EU:C:2010:347, the Court also noted that entry in the accounts and notification of the amount of customs duty owed, and the crediting of the own resources, do not prevent the debtor challenging, under Article 243 et seq. of the Customs Code, the obligation imposed on him by means of all the arguments at his disposal. |
31 According to settled case-law of the Court, since the Community institutions enjoy a degree of latitude in the choice of the means needed to achieve their policies, traders cannot entertain a legitimate expectation that an existing situation which is capable of being altered by decisions taken by those institutions within the limits of their discretion will be maintained (see in particular Case 245/81 Edeka Zentrale v Germany [1982] ECR 2745, paragraph 27, and Case 52/81 Faust v Commission [1982] ECR 3745, paragraph 27). In this case the fact that shortly before the adoption of the contested regulation the Commission had established a system of import licences prompted by unfavourable market developments means that there is even less reason for upholding a claim of breach of the principle of the protection of legitimate expectations.
Inadequate statement of the reasons on which the contested regulation was based | 27 THAT COMPLAINT MUST ALSO BE REJECTED . SINCE COMMUNITY INSTITUTIONS ENJOY A MARGIN OF DISCRETION IN THE CHOICE OF THE MEANS NEEDED TO ACHIEVE THEIR POLICIES , TRADERS ARE UNABLE TO CLAIM THAT THEY HAVE A LEGITIMATE EXPECTATION THAT AN EXISTING SITUATION WHICH IS CAPABLE OF BEING ALTERED BY DECISIONS TAKEN BY THOSE INSTITUTIONS WITHIN THE LIMITS OF THEIR DISCRETIONARY POWER WILL BE MAINTAINED . IN THE PRESENT CASE , THERE CAN BE NO QUESTION OF A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , PARTICULARLY SINCE THE COMMERCIAL AGREEMENT ENTERED INTO ON 3 APRIL 1978 BETWEEN THE COMMUNITY AND THE PEOPLE ' S REPUBLIC OF CHINA , PUBLISHED IN THE OFFICIAL JOURNAL OF 11 MAY 1978 ( OFFICIAL JOURNAL 1978 , L 123 , P . 2 ) WAS OF SUCH A NATURE AS TO ALERT TRADERS TO AN IMMINENT CHANGE OF DIRECTION IN THE COMMUNITY ' S COMMERCIAL POLICY AND , IN THE ABSENCE OF ANY OBLIGATION ON THE PART OF THE COMMUNITY TO ACCORD EQUAL TREATMENT TO NON-MEMBER COUNTRIES , NO INFORMED TRADER WAS ENTITLED TO EXPECT THAT PATTERS OF TRADE EXISTING WHEN THE PROTECTIVE MEASURES WERE ADOPTED WOULD BE RESPECTED .
| 41. In the context of that cooperation, the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, is, having regard to the particular circumstances of the case, in the best position to assess both the need for a preliminary ruling in order to enable it to give 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 of Justice is, in principle, bound to give a ruling (see, inter alia, Schmidberger , paragraph 31, and Mangold , paragraphs 34 and 35). |
47. Furthermore, the way in which a benefit is classified under domestic law is not decisive for the purposes of determining whether or not that benefit falls within the material scope of Regulation No 1408/71 (see Case C‑78/91 Hughes [1992] ECR I‑4839, paragraph 14; Joined Cases C‑245/94 and C‑312/94 Hoever and Zachow [1996] ECR I‑4895, paragraph 17; and Offermanns , paragraph 37). | 37 As regards the legal nature of a benefit such as that in question here, the way in which it is classified under domestic law is not determinative in assessing whether or not it is covered by Regulation No 1408/71 (see Hughes, paragraph 14, and Hoever and Zachow, paragraph 17). It follows that the fact that a benefit is governed by the family law of a Member State is not decisive in evaluating its constituent elements. | 63
While, however, the Czech practice at issue is thus capable of being justified in part, in particular because the precious metals concerned may not correspond to the conditions of lawful marketing in a Member State, for that justification to be accepted it is also necessary that the practice is appropriate for attaining that objective and does not go beyond what is necessary to attain it (see, to that effect, judgments of 10 February 2009, Commission v Italy, C‑110/05, EU:C:2009:66, paragraph 59 and the case-law cited, and of 16 January 2014, Juvelta, C‑481/12, EU:C:2014:11, paragraph 29). |
36. According to well-established case‑law, it follows both from the primacy of European Union law over Member States’ domestic law and from the direct effect of a provision such as Article 6 of Decision No 1/80 that a Member State is not permitted to modify unilaterally the scope of the system of gradually integrating Turkish workers into the host Member State’s labour force (see, inter alia, Case C‑1/97 Birden [1998] ECR I‑7747, paragraph 37, and Case C‑188/00 Kurz [2002] ECR I‑10691, paragraph 66). | 37 Furthermore, the Court has held that, although, as the law stands at present, Decision No 1/80 does not encroach upon the competence of the Member States to refuse Turkish nationals the right of entry into their territories and to take up first employment there and does not preclude those Member States, in principle, from regulating the conditions under which Turkish nationals work for up to one year as provided for in the first indent of Article 6(1) of that decision, none the less that provision cannot be construed as permitting a Member State to modify unilaterally the scope of the system of gradual integration of Turkish workers in the host State's labour force, by denying a worker who has been permitted to enter its territory and who has lawfully pursued a genuine and effective economic activity for a continuous period of more than one year with the same employer the rights which the three indents of that provision confer on him progressively according to the duration of his employment. The effect of such an interpretation would be to render Decision No 1/80 meaningless and deprive it of any practical effect (see, to that effect, the judgment in Günaydin, paragraphs 36 to 38). | 137 On that point, it should be borne in mind that freedom of expression, of peaceful assembly and of association, enshrined inter alia in Articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (`the ECHR'), constitute fundamental rights which, as the Court of Justice has consistently held and as is reaffirmed in the preamble to the Single European Act and in Article F(2) of the Treaty on European Union (now, after amendment, Article 6(2) EU), are protected in the Community legal order (see, to that effect, Bosman, cited above, paragraph 79). |
51. A cash-flow disadvantage which arises from a cross-border situation can form a restriction on a fundamental freedom where such a disadvantage does not arise in a purely national situation (see, to that effect, judgments in Metallgesellschaft and Others , C‑397/98 and C‑410/98, EU:C:2001:134, paragraphs 44, 54 and 76; X and Y , C‑436/00, EU:C:2002:704, paragraphs 36 and 37; Rewe Zentralfinanz , C‑347/04, EU:C:2007:194, paragraphs 26 to 30; National Grid Indus , C‑371/10, EU:C:2011:785, paragraphs 36 and 37; DMC , C‑164/12, EU:C:2014:20, paragraphs 40 to 43; and Commission v Germany , C‑591/13, EU:C:2015:230, paragraphs 55 to 61). | 60. Such a difference in treatment cannot be explained by an objective difference in situation. In terms of legislation of a Member State which seeks to tax capital gains generated within its territory, the situation of a taxable person who reinvests those capital gains for the purpose of acquiring a replacement asset intended for a permanent establishment located within the territory of another Member State is, as regards the taxation of the capital gains which were generated in the first of those Member States prior to that reinvestment, similar to that of a taxable person who reinvests them in order to acquire a replacement asset intended for a permanent establishment located within the territory of that Member State. | 12 In reply to that argument, it is sufficient to observe that, as the Court has consistently held, the subject-matter of an action under Article 169 is determined in the Commission' s reasoned opinion and that, even where the default has been remedied after the period prescribed by the second paragraph of that article, there is still an interest in pursuing the action (see the judgment in Case 39/72 Commission v Italy [1973] ECR 101, paragraph 9). |
71 Such is in particular the case where the situation of a worker has factors linking it solely with a non-member country and one single Member State (see, to that effect, Case C-297/92 Baglieri [1993] ECR I-5211, paragraph 18; and Case C-60/93 Aldewereld [1994] ECR I-2991, paragraph 14). | 14 It follows from the case-law of the Court (see to that effect, in particular, the judgment in Case 237/83 Prodest v Caisse Primaire d' Assurance Maladie de Paris [1984] ECR 3153, paragraph 6) that the mere fact that the activities are carried out outside the Community is not sufficient to exclude the application of the Community rules on the free movement of workers, as long as the employment relationship retains a sufficiently close link with the Community. In a case such as this, a link of that kind can be found in the fact that the Community worker was employed by an undertaking from another Member State and, for that reason, was insured under the social security scheme of that State. | 32. Il résulte également d’une jurisprudence constante que, lorsque les États membres ont décidé de recourir à la fixation de seuils et/ou de critères, la marge d’appréciation qui leur est ainsi conférée trouve ses limites dans l’obligation, énoncée à l’article 2, paragraphe 1, de la directive 85/337, de soumettre, avant l’octroi d’une autorisation, à une étude d’incidences les projets susceptibles d’avoir des incidences notables sur l’environnement, notamment en raison de leur nature, de leurs dimensions ou de leur localisation (arrêt du 20 novembre 2008, Commission/Irlande, C-66/06, point 61 et jurisprudence citée). |
82
In that connection, the contracting authority is justified in expressly setting out, in principle in the tender notice or the tender specifications, the requirement to provide evidence of specific capacities and practical arrangements by which the candidate/tenderer must demonstrate its suitability to be awarded and perform the contract concerned. Likewise, it is conceivable that, in specific circumstances, having regard to the nature of the works concerned and the subject matter and purpose of the contract, the contracting authority may lay down limits, in particular regarding the use of a limited number of economic operators, pursuant to Article 44(2) of Directive 2004/18 (see, to that effect, judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraphs 39 to 41, and of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 90 and the case-law cited). | 39
Second, as the Court has already held, the provisions of Directive 2004/18 do not preclude the exercise of the right established in Articles 47(2) and 48(3) thereof from being limited in exceptional circumstances (see, to that effect, judgment in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraph 36). | 58. If that were not so, persons whose personal data has been or could be transferred to the third country concerned would be denied the right, guaranteed by Article 8(1) and (3) of the Charter, to lodge with the national supervisory authorities a claim for the purpose of protecting their fundamental rights (see, by analogy, judgment in Digital Rights Ireland and Others , C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 68). |
30. Furthermore, it should be borne in mind that the existence of an internal armed conflict can be a cause for granting subsidiary protection only where confrontations between a State’s armed forces and one or more armed groups or between two or more armed groups are exceptionally considered to create a serious and individual threat to the life or person of an applicant for subsidiary protection for the purposes of Article 15(c) of Directive 2004/83 because the degree of indiscriminate violence which characterises those confrontations reaches such a high level that substantial grounds are shown for believing that a civilian, if returned to the relevant country or, as the case may be, to the relevant region, would – solely on account of his presence in the territory of that country or region – face a real risk of being subject to that threat (see, to that effect, Elgafaji , paragraph 43). | 43. Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, must be interpreted as meaning that:
– the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;
– the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat. | 17 In that connection, the Court has consistently held that it is for the national court to decide whether that condition has been satisfied, having regard to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised (see inter alia Case C-371/90 Beirafrio v Alfândega do Porto [1992] ECR I-2715, paragraph 21). |
27 Since Article 2(1) of the Sixth Directive excludes from the scope of VAT transactions in which the taxable person is not acting as such, loan transactions, such as those in point in the main proceedings, are subject to VAT only if they constitute either an economic activity of the operator within the meaning of Article 4(2) of the Sixth Directive or the direct, permanent and necessary extension of a taxable activity, without, however, being incidental to that activity within the meaning of Article 19(2) of the directive (see, to that effect, Régie Dauphinoise, paragraph 18). | 17 Unlike the receipt of dividends by a holding company, in respect of which, in Case C-333/91 Sofitam [1993] I-3513, paragraph 13, the Court held that, not being consideration for an economic activity, it did not fall within the scope of VAT, interest received by a property management company on placements made for its own account of sums paid by co-owners or lessees cannot be excluded from the scope of VAT, since the interest does not arise simply from ownership of the asset, but is the consideration for placing capital at the disposition of a third party. | 43. Furthermore, the Court has held that the directive precludes legislation of a Member State which does not allow the court before which an application for an order for payment has been brought to assess of its own motion, in limine litis or at any other stage during the proceedings, even though it already has the legal and factual elements necessary in that regard, whether a term concerning interest on a late payment contained in a contract concluded between a seller or supplier or consumer is unfair where that consumer has not lodged an objection (judgment in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 57). |
51 In that regard, it is clear from the case-law of the Court that the scope of Community regulations must in no case be extended to cover abuses on the part of a trader (Cremer, cited above, paragraph 21). The Court has also held that the fact that importation and re-exportation operations were not realised as bona fide commercial transactions but only in order wrongfully to benefit from the grant of monetary compensatory amounts, may preclude the application of positive monetary compensatory amounts (General Milk Products, cited above, paragraph 21). | 21 As stated by the plaintiff company in the main proceedings and the Commission, the position would be different only if it could be shown that the importation and re-exportation of that cheese were not realised as bona fide commercial transactions but only in order wrongfully to benefit from the grant of monetary compensatory amounts (see, by analogy, the judgment in Case 250/80 Anklagemyndigheden v Toepfer [1981] ECR 2465). The bona fide nature of those transactions is a question of fact to be decided by the national court. | 49
Nevertheless, the mere fact that that evidence is more difficult to provide cannot authorise a Member State to deny categorically to non-residents, as taxpayers with limited liability, a deduction which it grants to residents, as taxpayers with unlimited liability, given that it cannot a priori be ruled out that a non-resident 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 business expenses in respect of which deduction is sought (see, by analogy, judgments of 27 January 2009 in Persche, C‑318/07, EU:C:2009:33, paragraph 53, and 26 May 2016 in Kohll and Kohll-Schlesser, C‑300/15, EU:C:2016:361, paragraph 55). |
41. According to the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court does not, in principle, have jurisdiction with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions (judgment in Parliament v Council , C‑658/11, EU:C:2014:2025, paragraph 69). | 69. As regards, first of all, the question of the Court’s jurisdiction to rule on the second plea, it must be noted, as the Council submits, that it is apparent from the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU that the Court does not, in principle, have jurisdiction with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions. | Il convient de rappeler que, selon une jurisprudence constante, la motivation de l’arrêt attaqué doit faire apparaître de façon claire et non équivoque le raisonnement du Tribunal, de manière à permettre aux intéressés de connaître les justifications de la décision prise et à la Cour d’exercer son contrôle juridictionnel (voir, notamment, arrêt du 26 mai 2016, Rose Vision/Commission, C‑224/15 P, EU:C:2016:358, point 24 et jurisprudence citée). |
42. In addition, the Court has held, in the context of the reverse charge procedure, that the principle of VAT neutrality requires deduction of input tax to be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (Joined Cases C-95/07 and C-96/07 Ecotrade [2008] ECR I-3457, paragraph 63, and Case C-392/09 Uszodaépítö [2010] ECR I‑0000, paragraph 39). Where the tax authority has the information necessary to establish that the taxable person is, as the recipient of the supplies in question, liable to VAT, it cannot impose, in relation to the right of that taxable person to deduct that tax, additional conditions which may have the effect of rendering that right ineffective ( Ecotrade , paragraph 64, and Uszodaépítö , paragraph 40). | 64. Therefore, where the tax authority has the information necessary to establish that the taxable person is, as the recipient of the supply of services in question, liable to VAT, it cannot, in relation to the right of that taxable person to deduct that tax, impose additional conditions which may have the effect of rendering that right ineffective for practical purposes (see Bockemühl , paragraph 51). | 34. That criterion must make it possible to determine whether an individual has used property in such a way that his activity is to be regarded as ‘economic activity’ within the meaning of the VAT Directive. The fact that property is suitable only for economic exploitation will normally be sufficient for a finding that its owner is exploiting it for the purposes of economic activities and, consequently, for the purpose of obtaining income on a continuing basis. On the other hand, if, by reason of its nature, property is capable of being used for both economic and private purposes, all the circumstances in which it is used will have to be examined in order to determine whether it is actually being used for the purpose of obtaining income on a continuing basis ( Enkler , paragraph 27). |
29. First, it should be recalled that it is clear, both from the case-law of the Court and from Article 152(5) EC, that Community law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions intended to govern the organisation and delivery of health services and medical care. In exercising that power, however, the Member States must comply with Community law, in particular the provisions of the Treaty on the freedoms of movement, including freedom of establishment. Those provisions prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of those freedoms in the healthcare sector (see, to that effect, Case 238/82 Duphar and Others [1984] ECR 523, paragraph 16; Case C‑372/04 Watts [2006] ECR I‑4325, paragraphs 92 and 146; and Case C‑141/07 Commission v Germany [2008] ECR I‑0000, paragraphs 22 and 23). | 146. Next, it should be noted that, according to Article 152(5) EC, Community action in the field of public health is to fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. | 35. However, it should be pointed out that where the grounds of a judgment of the General Court disclose an infringement of EU law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must be dismissed (Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 58, and Case C‑352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I‑2359, paragraph 136). |
38. As a preliminary point, it must be recalled that, in so far as Regulation No 44/2001 now replaces the Brussels Convention in relations between the Member States, with the exception of the Kingdom of Denmark, an interpretation given by the Court concerning that convention also applies to the regulation, where its provisions and those of the Brussels Convention may be treated as equivalent (see, inter alia, Case C‑292/08 German Graphics Graphische Maschinen [2009] ECR I‑8421, paragraph 27 and case-law cited). Furthermore, it is clear from recital 19 in the preamble to Regulation No 44/2001 that continuity in interpretation between the Brussels Convention and that regulation should be ensured. | 27. In so far as Regulation No 44/2001 has now replaced the Brussels Convention in relations between Member States, the interpretation provided by the Court in respect of the provisions of the Brussels Convention also applies to the provisions of Regulation No 44/2001 whenever both sets of provisions may be regarded as equivalent. It is also clear from the 19th recital in the preamble to Regulation No 44/2001 that continuity of interpretation should be ensured between the Brussels Convention and Regulation No 44/2001 (Case C-167/08 Draka NK Cables and Others [2009], ECR I-0000, paragraph 20). | 77. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered ( OHIM v Erpo Möbelwerk , paragraph 45, and OHIM v BORCO-Marken-Import Matthiesen , paragraph 45). That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see, to that effect, as regards Article 3 of Directive 89/104, Case C-218/01 Henkel [2004] ECR I-1725, paragraph 62). |
11 In that regard, it should be borne in mind that, in accordance with 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 that Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-394/00 Commission v Ireland [2002] ECR I-581, paragraph 12). The Court has also consistently held that the object of an action for failure to comply with Treaty obligations is established by the Commission's reasoned opinion and, even when the default has been remedied after the time-limit prescribed by that opinion, pursuit of the action still has an object. That object may consist in particular in establishing the basis of the liability that a Member State could incur towards those who acquire rights as a result of its default (see, inter alia, Case 154/85 Commission v Italy [1987] ECR 2717, paragraph 6). | 12 Moreover, the Court has repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-435/99 Commission v Portugal [2000] ECR I-11179, paragraph 16, and Case C-111/00 Commission v Austria [2001] ECR I-7555, paragraph 13). | 45. As regards the burden of proof and the degree of detail which the evidence required must meet in order to benefit from a tax credit in respect of dividends paid by a capital company established in another Member State, it must be borne in mind that the tax authorities of a Member State are entitled to require the taxpayer to provide such proof as they may consider necessary in order to determine whether the conditions for a tax advantage provided for in the legislation at issue have been met and, consequently, whether or not to grant that advantage (see Joined Cases C-436/08 et C-437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen [2011) ECR 1-0000, paragraph 95 and case-law cited). |
22. Economic activities are defined in Article 4(2) of the Sixth Directive as comprising all activities of producers, traders and persons supplying services (see Commission v Netherlands , paragraph 7; Commission v Greece , paragraph 25; and Commission v Spain , paragraph 88). | 25 Economic activities are defined in Article 4(2) as comprising all activities of producers, traders and persons supplying services. In particular, the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis is also to be considered an economic activity. | 80. As regards, in the first place, the question as to whether the 14-day period allowed for challenging the penalty for failure to disclose is compatible with the principle of effective judicial protection, it should be borne in mind that the period prescribed must be sufficient in practical terms to enable an effective objection to be prepared and submitted (see, to that effect, Case C‑69/10 Samba Diouf [2011] ECR I‑7151, paragraph 66). |
75. Selon une jurisprudence constante, l’obligation de motivation n’impose pas au Tribunal de fournir un exposé qui suivrait, de manière exhaustive et un par un, tous les raisonnements articulés par les parties au litige et la motivation peut donc être implicite à condition qu’elle permette aux intéressés de connaître les raisons pour lesquelles le Tribunal n’a pas fait droit à leurs arguments et à la Cour de disposer des éléments suffisants pour exercer son contrôle (arrêts FIAMM e.a./Conseil et Commission, C-120/06 P et C-121/06 P, EU:C:2008:476, point 96 et jurisprudence citée, ainsi que British Telecommunications/Commission, C-620/13 P, EU:C:2014:2309, point 56). | 96. Second, it should also be recalled that the obligation to state reasons does not require the Court of First Instance to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the Court of First Instance has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, in particular, Joined Cases C-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 372, and the judgment of 25 October 2007 in Case C-167/06 P Komninou and Others v Commission , paragraph 22). | 22 Second, it should be pointed out that the actual application by the Court of First Instance of that criterion to this case, as challenged by DKV, involves findings of a factual nature. As the Advocate General has pointed out at point 58 et seq. of his Opinion, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence before it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgment in Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 78 and order in Case C-323/00 P DSG v Commission [2002] ECR I-0000, paragraph 34). |
23. Thus, the Court has held that, in the case of part-time employment, EU law does not preclude a retirement pension being calculated pro rata temporis in the case of part-time employment (see, to that effect, judgment in Schönheit and Becker , C‑4/02 and C‑5/02, EU:C:2003:583, paragraphs 90 and 91), nor does it preclude paid annual leave from being calculated in accordance with the same principle (see, to that effect, judgments in Zentralbetriebsrat der Landeskrankenhāuser Tirols , C‑486/08, EU:C:2010:215, paragraph 33, and Heimann and Toltschin , EU:C:2012:693, paragraph 36). | 91. The fact that, in addition to the number of years spent working in the civil service, an official's actual period of service during those years, as compared with the actual period of service of an official who has worked on a full-time basis throughout his career, is also taken into account is an objective criterion unrelated to any discrimination on grounds of sex, allowing his pension entitlement to be reduced proportionately. | 39. In so far as Lito puts forward, in the context of the present ground of appeal, the same argument as that already put forward at first instance, without demonstrating what the error allegedly committed by the General Court in paragraphs 55 and 56 of the judgment under appeal consisted of, it must be rejected as inadmissible in accordance with the Court of Justice’s settled case-law (see, inter alia, judgment in Interporc v Commission , C‑41/00 P, EU:C:2003:125, paragraph 16). |
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). | 55 The financial consequences which might ensue for a government owing to the unlawfulness of a tax or imposition have never in themselves justified limiting the effects of a judgment of the Court (see the judgment in Dansk Denkavit and Poulsen Trading, cited above). Furthermore, to limit the effects of a judgment solely on the basis of such considerations would considerably diminish the judicial protection of the rights which taxpayers have under Community fiscal legislation (see the judgment in Joined Cases C-367/93 to C-377/93 Roders and Others v Inspecteur der Invoerrechten en Accijnzen [1995] ECR I-2229). | 83. In the absence of a definition in the Sixth Directive of that concept of foodstuffs, it must be interpreted in the light of its context within the Sixth Directive (see, by analogy, Cases C‑83/99 Commission v Spain [2001] ECR I‑445, paragraph 17, and Case C‑3/09 Erotic Center [2010] ECR I‑0000, paragraph 14). |
57. In relations between Member States, information requested or provided by the tax authorities concerned is all the more likely to allow it to be ascertained whether the conditions laid down under national legislation are satisfied since Community harmonisation measures apply in the field of company accounts, with the result that it is possible to produce reliable and verifiable evidence relating to a company established in another Member State (see, to that effect, Case C-101/05 A [2007] ECR I-11531, paragraph 62). | 62. In second place, as the Advocate General pointed out at points 141 to 143 of his Opinion, with regard to the documentary evidence which the taxpayer may provide to enable the tax authorities to ascertain whether the requirements under national legislation are satisfied, the Community harmonisation measures on company accounts which apply in the Member States allow the taxpayer to produce reliable and verifiable evidence on the structure or activities of a company established in another Member State, whereas the taxpayer is not ensured of such an opportunity in the case of a company established in a third country which is not required to apply those Community measures. | 43. As regards the question whether the Regulation, and in particular Article 1 thereof, precludes a system, such as that at issue in the main proceedings, liable to culminate in the imposition of timeslots for reasons of the safety of ships and order in ports, it is important to note that national rules, which make the provision of maritime cabotage services subject to prior administrative authorisation, are liable to impede or render less attractive the provision of those services and therefore constitute a restriction on the freedom to provide them (see Analir and Others , paragraph 22, and Commission v Spain , paragraph 44). |
42. It is true that, according to the Court’s case‑law relating to public contracts awarded in accordance with all the provisions of the various public procurement directives which preceded the adoption of the Directive, the purpose of the requirement to inform tenderers in advance of the award criteria and, where possible, of their relative weighting, is to ensure that the principles of equal treatment and transparency are complied with (see, inter alia, Case C‑470/99 Universale‑Bau and Others [2002] ECR I‑11617, paragraph 98, and Case C‑331/04 ATI EAC and Viaggi di Maio and Others [2005] ECR I‑10109, paragraphs 22 to 24). | 23. It must also be observed that, in accordance with Article 36 of Directive 92/50 and Article 34 of Directive 93/38, all such criteria must be expressly mentioned in the contract documents or the tender notice, where possible in descending order of importance, so that operators are in a position to be aware of their existence and scope (see Concordia Bus Finland , paragraph 62). | 46 In that connection, the Court has repeatedly held that the principle of State liability for loss or 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 (Francovich I, cited above, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 31; Case C-392/93 British Telecommunications [1996] ECR I-1631, paragraph 38; and Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 24; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 20). |
50. That outcome is not called into question by the fact that, in certain exceptional cases, the Court has accepted that, having regard to the specific characteristics of the sectors in question, differences in the regulatory framework or the legal regime governing the supplies of goods or services at issue, such as whether or not a drug is reimbursable or whether or not the supplier of a service is subject to an obligation to provide a universal service, may create a distinction in the eyes of the consumer, in terms of the satisfaction of his own needs (Case C-481/98 Commission v France , paragraph 27, and Case C-357/07 TNT Post UK [2009] ECR I-3025, paragraphs 38, 39 and 45). | 27 Next, it must be noted that the effect of this classification is that the two categories of medicinal products are not similar products in competition with each other. Once included on the list of reimbursable products, a medicinal product will, vis-à-vis a non-reimbursable medicinal product, have a decisive advantage for the final consumer. This is why the consumer, as the Advocate General notes in point 66 of his Opinion, seeks in preference medicinal products coming within the category of those that are reimbursable, and consequently it is not the lower rate of VAT which provides the reason for his decision to purchase. The reduced rate of VAT on reimbursable medicinal products does not have the effect of favouring the sale of such products over the sale of medicinal products that are not reimbursable. The two categories of medicinal products are thus not in a situation of competition in which the difference in the rates of VAT could be relevant. | 71. Such findings do not, however, alter the fact that the system of own resources established pursuant to the Treaty is designed, as regards VAT resources, to create an obligation on the part of the Member States to make available to the Community as own resources a proportion of the amounts which they collect as VAT (see, to that effect, Case C‑30/89 Commission v France [1990] ECR I‑691, paragraph 23). Nor do those findings alter the fact that the Member States are required – for the purposes of ensuring an effective levy of that VAT revenue and of being able, to the extent required by Decisions 2000/597 or 2007/436 and Regulation No 1553/89, to make the corresponding VAT resources available to the Community budget – to respect the various rules of Community law relating to that levy, such as those contained in the Sixth VAT Directive and the VAT Directive, and indeed Regulation No 1798/2003. The situation is, in that regard, appreciably different from that of own resources based on the GNI of the Member States. |
53. Second, according to the Court’s case-law, by harmonising the rules applicable to collective redundancies, the EU legislature intended both to ensure comparable protection for employees’ rights in the different Member States and to harmonise the costs which such protective rules entail for EU undertakings (judgments in Commission v United Kingdom , C‑383/92, EU:C:1994:234, paragraph 15, and Commission v Portugal , C 55/02, EU:C:2004:605, paragraph 48). | 16 By harmonizing the rules applicable to collective redundancies, the Community legislature intended both to ensure comparable protection for workers' rights in the different Member States and to harmonize the costs which such protective rules entail for Community undertakings. | 48. S’agissant des moyens invoqués par la République italienne pour sa défense, il y a lieu de relever que, selon une jurisprudence constante de la Cour, le seul moyen de défense susceptible d’être invoqué par un État membre contre un recours en manquement introduit par la Commission sur le fondement de l’article 108, paragraphe 2, TFUE est celui tiré d’une impossibilité absolue d’exécuter correctement la décision en cause (voir, notamment, arrêts du 20 septembre 2007, Commission/Espagne, C‑177/06, Rec. p. I‑7689, point 46; du 13 novembre 2008, Commission/France, C‑214/07, Rec. p. I‑8357, point 44, et du 14 juillet 2011, Commission/Italie, précité, point 33). |
22. As a preliminary point, it must be noted that contracts concerning the provision of rescue services to the public, awarded by the Passau municipal association, are concluded in the form of the so-called ‘concession model’. That procurement model can be distinguished from the ‘tender’ model, which is a method of awarding a public service contract (see, to that effect, Case C-160/08 Commission v Germany [2010] ECR I-0000, paragraph 131), by the fact that, under the concession model, remuneration does not come from the contracting authority but from the sums collected from the users of the service by a central settlement office. The usage fees applicable to the service are agreed between the social security institution and the service provider selected by the Passau municipal authority. | 131. Having regard to all of the foregoing considerations, it must be held that, by failing to publish notices of the results of the procedure for the award of contracts, the Federal Republic of Germany has failed to fulfil its obligations under Article 10 of Directive 92/50 in conjunction with Article 16 thereof or, since 1 February 2006, under Article 22 of Directive 2004/18 in conjunction with Article 35(4) thereof in relation to the award in accordance with the tender model of contracts for public emergency ambulance and qualified patient transport services in the Länder of Saxony-Anhalt, North Rhine-Westphalia, Lower Saxony and Saxony. | 84. Admittedly, the Court has accepted that the need to preserve the coherence of a tax system may justify legislation restricting fundamental freedoms (see, to that effect, inter alia, Case C-204/90 Bachmann [1992] ECR I-249, paragraph 21; Case C-157/07 Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt [2008] ECR I-8061, paragraph 43; and Commission v Hungary , paragraph 70). |
104. The Court of Justice has already held that the General Court is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself, and the failure to state such matters in the application cannot be compensated for by putting them forward at the hearing (see Case C-214/05 P Rossi v OHIM [2006] ECR I‑7057, paragraph 37). | 37. Accordingly, the Court of First Instance is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself. It follows that, contrary to the appellant’s assertions, the failure to state such matters in the application cannot be compensated for by putting them forward at the hearing. | 26 The Court observes that, according to its case-law (United Kingdom v Commission, paragraph 13), where it proves impossible to establish with certainty the extent to which a national measure which is incompatible with Community law has caused an increase in the expenditure entered under a budgetary item of the EAGGF, the Commission has no choice but to disallow all the expenditure in question. |
27. As regards medical services, it is clear from the case-law that Article 13A(1)(b) of the Sixth Directive covers all services supplied in a hospital environment while Article 13A(1)(c) thereof covers medical services provided outside such a framework, both at the private address of the person providing the care and at the patient’s home or at any other place (see, to that effect, Case C‑141/00 Kügler [2002] ECR I‑6833, paragraph 36). It follows that Article 13A(1)(b) and (c) of the Sixth Directive, which have separate fields of application, are intended to regulate all exemptions of medical services in the strict sense (see Kügler , paragraph 36, and Case C‑106/05 L.u.P. [2006] ECR I‑5123, paragraph 26). | 36 It follows that Article 13(A)(1)(b) and (c) of the Sixth Directive, which have separate fields of application, are intended to regulate all exemptions of medical services in the strict sense. Article 13(A)(1)(b) exempts all services supplied in a hospital environment while Article 13(A)(1)(c) is designed to exempt medical services provided outside such a framework, both at the private address of the person providing the care and at the patient's home or at any other place. | 23 In that respect such provisions constitute measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 30 of the Treaty (Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5). |
44
Fourthly, it is apparent from the judgments of 4 September 2014, Spain v Commission (C‑192/13 P, EU:C:2014:2156, paragraphs 10 to 12), and of 4 September 2014, Spain v Commission (C‑197/13 P, EU:C:2014:2157, paragraphs 10 to 12) that the discussions between the parties continued beyond the hearing in both cases in question and that the Commission had adopted the contested decision in those cases less than six months after the end of those discussions in one of them, facts which the Court of Justice would have taken into account if it had intended to restrict the scope of the interpretation given in those judgments. | 12. On 13 September 2010, the Commission adopted the decision at issue. | 83 Moreover, the requirement to state reasons must be appraised on the basis of the particular features of the case in point, such as the content of the measure in question and the nature of the reasons given (Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19). |
33. Those situations include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the right to move and reside within the territory of the Member States, as conferred by Article 18 EC (see Case C-274/96 Bickel and Franz [1998] ECR I‑7637, paragraphs 15 and 16, Grzelczyk , paragraph 33, and Garcia Avello , paragraph 24). | 15 Situations governed by Community law include those covered by the freedom to provide services, the right to which is laid down in Article 59 of the Treaty. The Court has consistently held that this right includes the freedom for the recipients of services to go to another Member State in order to receive a service there (Cowan, paragraph 15). Article 59 therefore covers all nationals of Member States who, independently of other freedoms guaranteed by the Treaty, visit another Member State where they intend or are likely to receive services. Such persons - and they include both Mr Bickel and Mr Franz - are free to visit and move around within the host State. Furthermore, pursuant to Article 8a of the Treaty, `[e]very citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect'. | 144. The principle of proportionality, which is one of the general principles of Community law, requires the means employed by a Community provision to be appropriate for attaining the objective pursued and not to go beyond what is necessary to achieve it (see, inter alia, Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15; Case C-339/02 ADM Ölmühlen [1993] ECR I-6473, paragraph 15; and Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I‑6453, paragraph 59). |
45. The leave in question in the main proceedings must be taken when the child is born. Article 8 of Directive 92/85 precisely guarantees a right to maternity leave of at least 14 continuous weeks, including a period of compulsory leave of at least 2 weeks allocated before and/or after confinement in accordance with national legislation and/or practice. In addition, the fact that legislation grants women maternity leave of more than 14 weeks does not preclude that leave from being considered to be maternity leave as referred to in Article 8 of Directive 92/85 (see Case C‑284/02 Sass [2004] ECR I‑11143, paragraph 44). | 44. Therefore, the fact that a piece of legislation grants women maternity leave of more than 14 weeks does not preclude that leave from being considered to be maternity leave as referred to in Article 8 of Directive 92/85 and, therefore, a period during which the rights connected with the employment contract must, under Article 11, be ensured. | 42. Consequently, where a taxable person chooses to treat an entire building as forming part of the assets of his business and uses part of that building for private purposes he is both entitled to deduct the input VAT paid on all construction costs relating to that building and subject to the corresponding obligation to pay VAT on the amount of expenditure incurred to effect such use ( Wollny , paragraph 24). |
15
Furthermore, it is clear from case-file that the interpretation requested of the Court is necessary to enable the referring court to give judgment in the case at issue in the main proceedings. In those circumstances, it is not for the Court, given the allocation of functions between itself and the national courts, to determine whether the decision to refer has been taken in accordance with the rules of national law governing the organisation of courts and their procedure (judgment of 23 November 2006 in Asnef-Equifax and Administración del Estado (C‑238/05, EU:C:2006:734, paragraph 14 and the case-law cited) or, consequently, to reject the request for a preliminary ruling. | 14. At the outset, it must be observed that in the context of the procedure provided for in Article 234 EC, it is not for the Court, given the allocation of functions between itself and the national courts, to determine whether the decision to refer has been taken in accordance with the rules of national law governing the organisation of courts and their procedure (see Case C-10/92 Balocchi [1993] ECR I-5105, paragraphs 16 and 17, and Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 33). | 77. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered ( OHIM v Erpo Möbelwerk , paragraph 45, and OHIM v BORCO-Marken-Import Matthiesen , paragraph 45). That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see, to that effect, as regards Article 3 of Directive 89/104, Case C-218/01 Henkel [2004] ECR I-1725, paragraph 62). |
142 It is settled case-law that the statement of objections must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. The essential procedural safeguard which the statement of objections constitutes is an application of the fundamental principle of Community law which requires the right to a fair hearing to be observed in all proceedings (Joined Cases 100/80 to 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, paragraphs 10 and 14). | 10 AS THE COURT RECALLED IN ITS JUDGMENT OF 13 FEBRUARY 1979 IN CASE 85/76 ( HOFFMANN-LA ROCHE V COMMISSION ( 1979 ) ECR 461 ), THE ABOVEMENTIONED PROVISIONS ARE AN APPLICATION OF THE FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW WHICH REQUIRES THE RIGHT TO A FAIR HEARING TO BE OBSERVED IN ALL PROCEEDINGS , EVEN THOSE OF AN ADMINISTRATIVE NATURE , AND LAYS DOWN IN PARTICULAR THAT THE UNDERTAKING CONCERNED MUST HAVE BEEN AFFORDED THE OPPORTUNITY , DURING THE ADMINISTRATIVE PROCEDURE , TO MAKE KNOWN ITS VIEWS ON THE TRUTH AND RELEVANCE OF THE FACTS AND CIRCUMSTANCES ALLEGED AND ON THE DOCUMENTS USED BY THE COMMISSION TO SUPPORT ITS CLAIM THAT THERE HAS BEEN AN INFRINGEMENT OF THE TREATY .
| 56. A situation such as that of Mr Rüffler is covered by the right of free movement and residence in the Member States of citizens of the European Union. Persons who, after retirement, leave the Member State of which they are nationals and in which they have carried out all their occupational activity in order to set up residence in another Member State exercise the right which Article 18(1) EC confers on every citizen of the European Union to move and reside freely within the territory of the Member States (see, to that effect, Turpeinen , paragraphs 16 to 19). |
38. The Court has held that the principle of legal certainty requires that Community legislation must allow those concerned to acquaint themselves with the precise extent of the obligations it imposes upon them, which may be guaranteed only by the proper publication of that legislation in the official language of those to whom it applies (see also, to that effect, Case C-370/96 Covita [1998] ECR I-7711, paragraph 27, Case C-228/99 Silos [2001] ECR I‑8401, paragraph 15, and Consorzio del Prosciutto di Parma and Salumificio S. Rita , paragraph 95). | 15 According to the case-law of the Court of Justice, a regulation can validly enter into force on the date of its publication (see, inter alia, the judgment in Case 57/72 Westzucker [1973] ECR 321, paragraph 19). The Court has also held that, in the absence of evidence to the contrary, a regulation is to be regarded as published throughout the Community on the date borne by the Official Journal of the European Communities containing the text of that regulation (Case 98/78 Racke [1979] ECR 69, paragraph 17). The Court has stated in this respect that, should evidence be produced indicating that that date does not correspond to the date on which the issue was in fact available, in the version in the language of the party, at the Office of Official Publications of the European Communities at Luxembourg, regard must be had to the later date (Racke, cited above, paragraph 15, and Case C-370/96 Covita [1998] ECR I-7711, paragraph 27). | 46. While, admittedly, it is true that the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, MKG-Kraftfahrzeuge-Factoring , paragraph 63, and Case C‑455/05 Velvet & Steel Immobilien [2007] ECR I‑3225, paragraph 14), the interpretation proposed by the Commission would nevertheless restrict the exemption in question in a manner which is not justified by the relevant wording. The term ‘transactions … in shares’ referred to in Article 13B(d)(5) of the Sixth Directive and Article 135(1)(f) of Directive 2006/112 is broad enough not to be restricted to the business of trading in shares. |
29. In paragraphs 26, 27 and 28 of this Schedule –
“bridleway”, “carriageway”, “field-edge path”, “footpath” and “made-up carriageway” have the meanings given to them in section 329(1) of the Highways Act 198 0; “highway” has the meaning given to it in section 328 of the Highways Act 1980; and “visible” means visible as a route to a person with normal eyesight walking or riding along it.’
16. The rules defining GAEC standards adopted by the devolved administrations of Scotland, Wales and Northern Ireland do not lay down requirements equivalent to those stated in the provisions at issue in the main proceedings.
The dispute in the main proceedings and the questions referred for a preliminary ruling
17. According to the order for reference, Mr Horvath, a farmer in England, has SPS payment entitlements. There are public rights of way over his land such as those referred to in the provisions at issue in the main proceedings.
18. Mr Horvath brought an action for judicial review of those provisions before the referring court. He claims, in particular, first, that the Secretary of State did not have the right to include the provisions relating to public rights of way among the minimum requirements for GAEC, the failure to comply with which may lead, under Article 6 of Regulation No 1782/2003, to a reduction of SPS payments. Second, he submits that the inclusion of such provisions in the English rules, when there are no such requirements in the rules adopted for Scotland, Wales and Northern Ireland, amounts to discrimination which renders the provisions at issue in the main proceedings unlawful.
19. The High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), decided to stay the proceedings and to refer to the Court of Justice two questions concerning those two issues in the proceedings pending before it. Concerning the second issue, the Secretary of State appealed to the Court of Appeal (England and Wales) (Civil Division), which dismissed the appeal. The High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), then submitted the following questions to the Court of Justice for a preliminary ruling:
‘Where a Member State has provided for a system of devolved government, in relation to which powers are retained to the central State authorities to act for the whole territory of the Member State to ensure compliance with that Member State’s obligations under Community law, in relation to [Regulation No 1782/2003]:
(1) Can a Member State include requirements relating to the maintenance of visible public rights of way in its standards of [GAEC] under Article 5 of and Annex IV to [Regulation No 1782/2003]?
(2) Where a Member State’s internal constitutional arrangements provide that different devolved administrations shall have legislative competence in relation to different constituent parts of that Member State, can it give rise to impermissible discrimination for constituent parts to have different standards of [GAEC] under Article 5 of and Annex IV to [Regulation No 1782/2003]?’
Questions referred for a preliminary ruling
The first question
20. By its first question, the referring court asks, essentially, whether a Member State may include, among the GAEC standards referred to in Article 5 of and Annex IV to Regulation No 1782/2003, requirements relating to the maintenance of visible public rights of way.
Observations submitted to the Court
21. The applicant in the main proceedings proposes that that question be answered in the negative. He submits that the reference, in the first recital of the preamble to Regulation No 1782/2003, to common conditions for direct payments under the income support schemes in the framework of the common agricultural policy means that a basic set of rules is required in this area, with the objective of incorporating the basic standards for, inter alia, GAEC, which must be in principle the same for all farmers across the Community. The GAEC minimum requirements which must be fulfilled in order to receive direct annual payments – the requirements referred to in Article 5 of that regulation – are limited to what is strictly required and the Member States may not legitimately impose supplementary conditions on one or more parties on their territory. The provisions at issue in the main proceedings cannot be considered as minimum requirements because they impose significant supplementary burdens on farmers.
22. According to Mr Horvath, even assuming that the provisions at issue in the main proceedings can be regarded as laying down environmental conditions, they are not GAEC requirements. Since Regulation No 1782/2003 has as its legal basis articles of the EC Treaty concerning agriculture, the environmental component of GAEC must be understood not as an autonomous provision laying down purely environmental standards, but on the contrary as providing only standards which are relevant in the agricultural sector. According to Article 4(1) of the regulation, only the Community institutions may establish the rules on the environmental requirements linked to the SPS entitlements which are contained in Annex III to the regulation. He claims, in addition, that the provisions at issue in the main proceedings are agri-environment measures which are applied above the reference level of good agricultural practices and are therefore excluded from GAEC under the last sentence of Article 5(1) of that regulation.
23. Finally, he submits that rights of way, such as those referred to in the provisions at issue in the main proceedings, cannot be regarded as landscape features within the meaning of Annex IV to Regulation No 1782/2003 since they lack substance and permanence owing to the fact that, while they must be reinstated as required, they may nevertheless be lawfully destroyed by the farmer at the time of each crop cycle. In addition, the imposition of such rights of way does not help avoid deterioration of habitats within the meaning of that annex.
24. The United Kingdom Government and the Commission of the European Communities submit that the rights of way are capable of constituting landscape features and that their maintenance may, therefore, amount to one of the GAEC minimum requirements referred to in Article 5 of Regulation No 1782/2003.
Answer of the Court
25. As a preliminary point, it must be stated that, according to the very wording of Article 5(1) of Regulation No 1782/2003, it is the Member States which are to ensure that all agricultural land is maintained in good agricultural and environmental condition. To that end, they are to define, at national or regional level, minimum requirements ‘on the basis of the framework set up in Annex IV’ of that regulation, taking into account the specific characteristics of the areas concerned.
26. While the Member States are therefore bound, when defining those requirements, to comply with that annex, it nevertheless leaves them, by using general concepts and terms, a certain discretion with regard to the actual determination of those requirements.
27. Moreover, it is apparent from the very wording of the phrase ‘good agriculture and environmental condition’, that the Member States may adopt GAEC requirements for environmental purposes.
28. That finding is not invalidated by the fact that the legal basis for Regulation No 1782/2003 includes Articles 36 EC and 37 EC, which fall under Title II (‘Agriculture’) of Part Three of the Treaty, and not the articles contained in Title XIX (‘Environment’) of that part of the Treaty.
29. Since requirements relating to environmental protection, one of the essential objectives of the Community, must, according to Article 6 EC, ‘be integrated into the definition and implementation of … Community policies and activities’, such protection must be regarded as an objective which also forms part of the common agricultural policy. The Community legislature may therefore, on the basis of Articles 36 EC and 37 EC, decide to promote environmental protection (see, by analogy, Case C-440/05 Commission v Council [2007] ECR I‑9097, paragraph 60). Measures intended to achieve such protection, adopted under a Community act having Articles 36 EC and 37 EC as a legal basis, are therefore not restricted to those pursuing agricultural objectives. | 60. Moreover, since requirements relating to environmental protection, which is one of the essential objectives of the Community (see, inter alia, Case C‑176/03 Commission v Council , paragraph 41), must, according to Article 6 EC, ‘be integrated into the definition and implementation of … Community policies and activities’, such protection must be regarded as an objective which also forms part of the common transport policy. The Community legislature may therefore, on the basis of Article 80(2) EC and in the exercise of the powers conferred on it by that provision, decide to promote environmental protection (see, by analogy, Case C‑336/00 Huber [2002] ECR I‑7699, paragraph 36). | 61. Consequently, the fact that Article 13B(d)(6) of the Sixth Directive allows Member States a discretion, indicating that they are responsible for defining special investment funds, does not prevent the persons concerned from relying directly on that provision (see, by analogy, Dornier , paragraph 81), where a Member State exercising that discretion has adopted national measures which are incompatible with that directive (see, to that effect, Linneweber and Akritidis , paragraphs 36 and 37). |
57. However, if, in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken under Article 27 of Directive 2004/38, by invoking reasons of State security, the court with jurisdiction in the Member State concerned must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other hand, the need to ensure sufficient compliance with the person’s procedural rights, such as the right to be heard and the adversarial principle (see, by analogy, Kadi and Al Barakaat International Foundation v Council and Commission , paragraph 344). | 344. In such a case, it is none the less the task of the Community judicature to apply, in the course of the judicial review it carries out, techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice (see, to that effect, the judgment of the European Court of Human Rights in Chahal v. United Kingdom of 15 November 1996, Reports of Judgments and Decisions 1996-V, § 131). | 45. Where that value is not a sum of money agreed between the parties, it must, in order to be subjective, be the value which the recipient of the services constituting the consideration for the supply of goods attributes to the services which he is seeking to obtain and must correspond to the amount which he is prepared to spend for that purpose (Case C-33/93 Empire Stores [1994] ECR I-2329, paragraph 19). |
55. The Court has already held that the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question, and is normally agreed upon between the provider and the recipient of the service (see Case 263/86 Humbel and Edel [1988] ECR 5365, paragraph 17, and Case C-109/92 Wirth [1993] ECR I-6447, paragraph 15). | 15 As the Court has already emphasized in Case 263/86 Belgian State v Humbel [1988] ECR 5365, at paragraphs 17, 18 and 19, the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question, and is normally agreed upon between the provider and the recipient of the service. In the same judgment the Court considered that such a characteristic is absent in the case of courses provided under the national education system. First of all, the State, in establishing and maintaining such a system, is not seeking to engage in gainful activity, but is fulfilling its duties towards its own population in the social, cultural and educational fields. Secondly, the system in question is, as a general rule, funded from the public purse and not by pupils or their parents. The Court added that the nature of the activity is not affected by the fact that pupils or their parents must sometimes pay teaching or enrolment fees in order to make a certain contribution to the operating expenses of the system. | 16 It is settled law that the object of Article 9(1) of the directive is to ensure minimum procedural safeguards for persons affected by a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit. That provision, which applies where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, envisages the intervention of a competent authority other than the authority empowered to take the decision. In proceedings before that competent authority the person concerned must enjoy such rights of defence and of assistance or representation as are provided for by the domestic law of that country (see, in particular, Joined Cases C-297/88 and C-197/89 Dzodzi v Belgium [1990] ECR I-3763, paragraph 62). |