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49
In that regard, it must be borne in mind that when a question on the validity of a measure adopted by the institutions of the European Union is raised before a national court or tribunal, it is for that court or tribunal to decide whether a preliminary ruling on the matter is necessary to enable it to give judgment and consequently whether it should ask the Court to rule on that question. Consequently, where the questions referred by the national court or tribunal concern the validity of a provision of EU law, the Court is, as a general rule, obliged to give a ruling (judgment of 3 June 2008, Intertanko and Others, C‑308/06, EU:C:2008:312, paragraph 31 and the case-law cited).
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31. In that regard, it is to be remembered that, when a question on the validity of a measure adopted by the institutions of the European Community is raised before a national court, it is for that court to decide whether a decision on the matter is necessary to enable it to give judgment and, consequently, whether it should request the Court to rule on that question. Accordingly, where the national court’s questions relate to the validity of a provision of Community law, the Court is obliged in principle to give a ruling ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 34 and the case-law cited).
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40
It follows from the foregoing that the detention of applicants, constituting a serious interference with those applicants’ right to liberty, is subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness.
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60. The Court has also held that the obligation to state reasons laid down in Article 296(2) TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see, to that effect, Case C‑113/00 Spain v Commission [2002] ECR I‑7601, paragraph 47, and France v Council , paragraph 50).
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47 It should first of all be observed that the obligation to provide a statement of reasons laid down in Article 253 EC is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. Accordingly, the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see, inter alia, Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35 and Italy v Commission, cited above, paragraph 48).
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63 Furthermore, any difficulty or doubt concerning a certificate must be brought to the attention of the authorities of the exporting State by the importing Member State. That cooperation, which is necessary in order to achieve the objectives of the directive, cannot be established with authorities who are not recognized either by the Community or by its Member States. It would be impossible for an importing State to address enquiries to the departments or officials of an entity which is not recognized, for instance concerning contaminated products or certificates that are incorrect or have been interfered with. Clearly only the authorities of the Republic of Cyprus are in a position to take action following complaints connected with the contamination of plant products exported from Cyprus.
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43
It follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts referred to in the third paragraph have the same discretion as all other national courts as to whether a decision on a question of EU law is necessary to enable them to give judgment. They are not therefore obliged to refer a question of the interpretation of EU law raised before them if the question is not relevant, that is to say, if the answer to that question, whatever it may be, cannot have any effect on the outcome of the case (judgment of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 26).
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26. It follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts or tribunals referred to in the third paragraph have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of European Union law is necessary to enable them to give judgment. Accordingly, those courts or tribunals are not obliged to refer to the Court of justice a question concerning the interpretation of European Union law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case (Case 283/81 Cilfit and Others [1982] ECR 3415, paragraph 10).
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46. Il convient de rappeler, à cet égard, qu’il ne saurait être nié que l’objectif de garantir la sécurité de l’approvisionnement en énergie, sur le territoire de l’État membre en cause, peut constituer une raison de sécurité publique (voir, en se sens, arrêts du 4 juin 2002, Commission/France, C‑483/99, Rec. p. I‑4781, point 47, et du 14 février 2008, Commission/Espagne, précité, point 38) et justifier, éventuellement, une entrave à la libre circulation des capitaux.
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186. In addition, where, as in the present case, Community law does not lay down any specific sanctions should instances of abuse nevertheless be established, it is incumbent on the national authorities to adopt measures which must be not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the measures taken pursuant to the Framework Agreement are fully effective, in accordance with the requirements referred to in paragraphs 158 to 160 of this judgment ( Adeneler and Others , paragraph 94; Marrosu and Sardino , paragraph 51; and Vassallo , paragraph 36; also order in Vassilakis and Others , paragraph 125).
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51. Furthermore, where, as in the present case, Community law does not lay down any specific sanctions should instances of abuse nevertheless be established, it is incumbent on the national authorities to adopt appropriate measures to deal with such a situation which must be not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the framework agreement are fully effective ( Adeneler and Others , paragraph 94).
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104 Finally, Wacker-Chemie and Hoechst complain that the Court of First Instance did not accept the need for new hearings in the absence of new objections even though the PVC II decision extended the duration of the infringement found to have been committed, was unfounded as regards the order to terminate the infringement made in Article 2 of the decision and did not determine the amount of the fine in accordance with Article 15(2) of Regulation No 17.
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46. Whether they are adopted by a Member State on the basis of Article 10(1) of Directive 90/425 or by the Commission on the basis of Article 10(4) of that directive, precautionary measures must observe the principle of proportionality (see, to that effect, in relation to measures adopted by a Member State of destination, Case C-220/01 Lennox [2003] ECR I-7091, paragraph 76; in relation to measures adopted by the Commission, Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paragraphs 96 to 111, and Jippes , cited above, paragraph 113).
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101 The contested decision was adopted as an `emergency measure' `temporarily' banning exports (fifth recital in the preamble). Moreover, the Commission acknowledges in the preamble to the decision the need for the significance of the new information and the measures to be taken to be subjected to detailed scientific study and, consequently, the need to review the contested decision following an overall examination of the situation (seventh recital).
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45. On that point, it should be noted that the laudatory connotation of a word mark does not mean that it cannot be appropriate for the purposes of guaranteeing to consumers the origin of the goods or services which it covers. Thus, such a mark can be perceived by the relevant public both as a promotional formula and as an indication of the commercial origin of goods or services. It follows that, in so far as the public perceives the mark as an indication of that origin, the fact that the mark is at the same time understood – perhaps even primarily understood – as a promotional formula has no bearing on its distinctive character.
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23
It should also be noted that, in accordance with Article 29 of the Customs Code, the customs value of imported goods is, in principle, to be made up of their transaction value, Article 29(1)(d) and (2) have the objective of ensuring that the customs value reflects the real economic value of imported goods and is not determined arbitrarily or fictitiously (see, to that effect, judgments in Mitsui & Co. Deutschland, C‑256/07, EU:C:2009:167, paragraph 20, and Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraphs 39 and 40). To that end, customs authorities are entitled to examine the price indicated by the person making the declaration and to reject it if they consider that the latter has been influenced by the relationships which exist between the parties to the transaction (judgment in Carboni e derivati, C‑263/06, EU:C:2008:128, paragraph 37).
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39. À cet égard, la Cour a précisé que, si le prix effectivement payé ou à payer pour les marchandises forme, en règle générale, la base de calcul de la valeur en douane (voir, en ce sens, arrêt Sommer, précité, point 22), ce prix est une donnée qui doit éventuellement faire l’objet d’ajustements lorsque cette opération est nécessaire pour éviter de déterminer une valeur en douane arbitraire ou fictive (arrêt du 19 mars 2009, Mitsui & Co. Deutschland, C‑256/07, Rec. p. I‑1951, point 24).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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95. Likewise, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter. The first paragraph of Article 47 of the Charter requires everyone whose rights and freedoms guaranteed by the law of the European Union are violated to have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law (see, to this effect, judgments in Les Verts v Parliament , 294/83, EU:C:1986:166, paragraph 23; Johnston , 222/84, EU:C:1986:206, paragraphs 18 and 19; Heylens and Others , 222/86, EU:C:1987:442, paragraph 14; and UGT-Rioja and Others , C‑428/06 to C‑434/06, EU:C:2008:488, paragraph 80).
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18 LE CONTROLE JURIDICTIONNEL IMPOSE PAR CET ARTICLE EST L ' EXPRESSION D ' UN PRINCIPE GENERAL DE DROIT QUI SE TROUVE A LA BASE DES TRADITIONS CONSTITUTIONNELLES COMMUNES AUX ETATS MEMBRES . CE PRINCIPE A EGALEMENT ETE CONSACRE PAR LES ARTICLES 6 ET 13 DE LA CONVENTION EUROPEENNE DE SAUVEGARDE DES DROITS DE L ' HOMME ET DES LIBERTES FONDAMENTALES , DU 4 NOVEMBRE 1950 . COMME IL A ETE RECONNU PAR LA DECLARATION COMMUNE DE L ' ASSEMBLEE , DU CONSEIL ET DE LA COMMISSION , EN DATE DU 5 AVRIL 1977 ( JO C 103 , P . 1 ), ET PAR LA JURISPRUDENCE DE LA COUR , IL CONVIENT DE TENIR COMPTE DES PRINCIPES DONT S ' INSPIRE CETTE CONVENTION DANS LE CADRE DU DROIT COMMUNAUTAIRE .
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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118 The Court has thus held that the principle of national treatment requires a Member State which is a party to a bilateral international treaty with a non-member country for the avoidance of double taxation to grant to permanent establishments of companies resident in another Member State the advantages provided for by that treaty on the same conditions as those which apply to companies resident in the Member State that is party to the treaty (see Saint-Gobain, paragraph 59; Case C-55/00 Gottardo v INPS [2002] ECR I-413, paragraph 32).
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59 As the Advocate General points out in point 81 of his Opinion, the obligations which Community law imposes on the Federal Republic of Germany do not affect in any way those resulting from its agreements with the United States of America and the Swiss Confederation. The balance and the reciprocity of the treaties concluded by the Federal Republic of Germany with those two countries would not be called into question by a unilateral extension, on the part of the Federal Republic of Germany, of the category of recipients in Germany of the tax advantage provided for by those treaties, in this case corporation tax relief for international groups, since such an extension would not in any way affect the rights of the non-member countries which are parties to the treaties and would not impose any new obligation on them.
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22 However, when circumstances beyond the control of the taxable person have prevented him from using the goods or services giving rise to deduction for the needs of his taxable transactions, there is no risk of fraud or abuse capable of justifying subsequent repayment.
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47
In the second place, Article 5(1) of Directive 2001/23 requires the bankruptcy proceedings or any analogous insolvency proceedings to be instituted with a view to liquidation of the assets of the transferor. In that regard it is clear, as follows from the case-law of the Court, that a procedure aimed at ensuring the continuation of the undertaking in question does not satisfy that requirement (see, to that effect, judgments of 25 July 1991, d’Urso and Others, C‑362/89, EU:C:1991:326, paragraphs 31 and 32, and of 7 December 1995, Spano and Others, C‑472/93, EU:C:1995:421, paragraph 25).
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31 If no decision is taken on that last matter or if the period of validity of a decision authorizing the undertaking to continue trading has expired, the aim, consequences and risks of a procedure such as the compulsory administrative liquidation procedure are comparable to those which led this Court to conclude, in its judgment in the Abels case, that Article 1(1) of the Directive did not apply to transfers of an undertaking, business or part of a business in a situation in which the transferor had been adjudged insolvent. Like insolvency proceedings, that procedure is designed to liquidate the debtor' s assets in order to satisfy the body of creditors, and transfers effected under this legal framework are consequently excluded from the scope of the Directive. As the Court pointed out in its judgment in Abels, without that exclusion, a serious risk of a general deterioration in the living and working conditions of workers, contrary to the social objectives of the Treaty, could not be ruled out.
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41. That is true not only for the leftover rock and ore-dressing sand whose use for construction operations or other purposes is uncertain (see Palin Granit , paragraphs 37 and 38), but also for the leftover rock which will be processed into aggregates, since, even if such use is probable, it requires precisely an operation for recovery of a substance which is not used as such either in the process of mining production or for the final use envisaged (see Palin Granit , paragraph 36).
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23. Under the Sixth Directive, the scope of VAT is very wide in that Article 2 thereof, which concerns taxable transactions, refers not only to imports of goods but also to the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such (see, in particular, Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 49; Case C‑401/05 VDP Dental Laboratory [2006] ECR I‑12121, paragraph 22; and Case C-88/09 Graphic Procédé [2010] ECR I‑0000, paragraph 15). Article 13 of the Sixth Directive nevertheless exempts certain activities from VAT.
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15. In that regard, under the Sixth Directive the scope of VAT is very wide in that Article 2 thereof, which concerns taxable transactions, refers not only to imports of goods but also to the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such (see Halifax and Others , paragraph 49).
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29. As regards comparability, the provisions of the Law on corporation tax of 1969 at issue in the main proceedings aim to treat, as far as possible, a group constituted by a parent company with its subsidiaries and its sub-subsidiaries in the same way as an undertaking with a number of establishments, by enabling the results of all those companies to be consolidated for tax purposes.
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38. It follows from the case-law cited in paragraph 32 of the present judgment that, in some circumstances, the assessment of the similarity may be made solely on the basis of the dominant element of a composite mark. However, that case-law concerns only exceptional situations (order in Repsol v OHIM , C‑466/13 P, EU:C:2014:2331, paragraph 83), and it is only if all the other components of the mark are negligible in the overall impression conveyed by it that the assessment of the similarity can be carried out solely on the basis of the dominant element (see, inter alia, judgments in Aceites del Sur-Coosur v Koipe , C‑498/07 P, EU:C:2009:503, paragraph 62, and United States Polo Association v OHIM , EU:C:2012:550, paragraph 57).
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57. In accordance with settled case-law, in the context of consideration of the likelihood of confusion, assessment of the similarity between two marks means more than taking just one component of a composite mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite mark may not, in certain circumstances, be dominated by one or more of its components (see Medion , paragraph 29, and OHIM v Shaker , paragraph 41). Nevertheless, it is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (see OHIM v Shaker , paragraph 42).
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39. Toutefois, les États membres sont tenus, en vertu de l’article 4, paragraphe 3, TUE de faciliter à la Commission l’accomplissement de sa mission, consistant notamment, selon l’article 17, paragraphe 1, TUE, à veiller à l’application des dispositions du traité FUE ainsi que des dispositions prises par les institutions de l’Union européenne en vertu de celui-ci (voir, en ce sens, arrêt Commission/Italie, C‑135/05, EU:C:2007:250, point 27 et jurisprudence citée).
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40. As the Advocate General noted at point 29 of his Opinion, Articles 25 EC and 90 EC, which lay down respectively a prohibition on customs duties and charges having equivalent effect and on discriminatory internal taxation, complement each other in pursuing the objective of prohibiting any national fiscal measure that is liable to discriminate against products coming from or destined for other Member States by constituting a restriction on their free movement within the Community in normal conditions of competition (see, to that effect, Joined Cases C-393/04 and C-41/05 Air Liquide Industries Belgium [2006] ECR I-5293, paragraph 55, and Case C‑221/06 Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten [2007] ECR I-0000, paragraph 30).
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30. As regards Article 90 EC, that provision, within the system of the Treaty, supplements the provisions on the abolition of customs duties and charges having equivalent effect. Its aim is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States (see, in particular, Air Liquide Industries Belgium , paragraph 55, and Case C‑313/05 Brzeziński [2007] ECR I‑513, paragraph 27).
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66. Such a possibility does not alter the automatic and absolute nature of the prohibition affecting any public works contractor who is also active in the media sector or connected with natural or legal persons involved in that sector; such a contractor is not concerned by that qualification to the general exclusionary measure provided for in favour of intermediaries.
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21. The involvement of a holding company in the management of companies in which it has acquired a shareholding constitutes an economic activity within the meaning of Article 4(2) of the Sixth Directive where it entails carrying out transactions which are subject to VAT by virtue of Article 2 of that directive, such as the supply by a holding company to its subsidiaries of administrative, financial, commercial and technical services (see, inter alia, judgments in Cibo Participations , C‑16/00, EU:C:2001:495, paragraph 22, and Portugal Telecom , C‑496/11, EU:C:2012:557, paragraph 34).
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34. The involvement of a holding company in the management of companies in which it has acquired a shareholding constitutes an economic activity within the meaning of Article 4(2) of the Sixth Directive where it entails carrying out transactions which are subject to VAT by virtue of Article 2 of that directive, such as the supply by a holding company to its subsidiaries of administrative, financial, commercial and technical services ( Cibo Participations , paragraph 22).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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42. As regards in particular the importance of contractual terms in categorising a transaction as a taxable transaction, it is necessary to bear in mind the case-law of the Court according to which consideration of economic and commercial realities is a fundamental criterion for the application of the common system of VAT (see, to that effect, Joined Cases C‑53/09 and C‑55/09 Loyalty Management UK and Baxi Group [2010] ECR I‑9187, paragraphs 39 and 40 and the case-law cited).
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40. In the light of the foregoing, it is necessary, in order to provide an answer to the questions referred, to determine, in the first place, the nature of the transactions carried out within the context of the loyalty rewards schemes at issue in the cases in the main proceedings.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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54. In the second place, as regards the consequences related to the case in which an applicant effects an earlier service pursuant to the detailed rules laid down by Regulation No 1393/2007, the Court notes that, by virtue of Article 16 thereof, the regulation lays down various means of transmission applicable to the service of extrajudicial documents exhaustively (see judgment in Alder , C‑325/11, EU:C:2012:824, paragraph 32).
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32. However, as those means of transmission of the judicial documents were the only ones laid down in an exhaustive manner in the scheme established by that regulation, it is clear that it does not provide any place for, and therefore precludes, a procedure for notional service such as that in force in Poland by virtue of Article 1135 5 of the Code of Civil Procedure.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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17 In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, in particular, the judgments in Case 33/76 Rewe v Landwirtschaftskammer fuer das Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 12 to 16, Case 68/79 Hans Just v Danish Ministry for Fiscal Affairs [1980] ECR 501, paragraph 25, Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 14, Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard v Directeur Général des Douanes des Droits Indirects [1988] ECR 1099, paragraph 12, Case 104/86 Commission v Italy [1988] ECR 1799, paragraph 7, Joined Cases 123/87 and 330/87 Jeunehomme and EGI v Belgian State [1988] ECR 4517, paragraph 17, Case C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12, and Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357, paragraph 43).
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43 Further, the substantive and procedural conditions for reparation of loss and damage laid down by the national law of the Member States must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation (see, in relation to the analogous issue of the repayment of taxes levied in breach of Community law, inter alia the judgment in Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595).
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45
In the present instance, the right which Austrian legislation accords to an applicant for international protection to plead circumstances subsequent to the adoption of the decision to transfer him, in an action brought against that decision, meets that obligation to provide for an effective and rapid remedy.
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95. The question whether there may be an appreciable effect on trade between Member States must therefore be assessed taking into account all the relevant factors of the individual case. Accordingly, the possibility cannot be ruled out that, in a particular case, one of those factors alone, such as the fact that the thresholds laid down by the Commission at point 53 of the Guidelines on the effect on trade has been clearly exceeded, may, in itself, provide a sufficient indication that there is an appreciable effect on trade between Member States within the meaning of Article 81(1) EC (see, by analogy, Case 19/77 Miller International Schallplatten v Commission [1978] ECR 131, paragraph 9, and Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 82, 83 and 86).
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9HOWEVER , ACCORDING TO THE DATA PRODUCED BY IT IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE ITS SHARE OF THE TOTAL MARKET IN SOUND RECORDINGS IN THE FEDERAL REPUBLIC OF GERMANY WAS ASSESSED FOR 1970 AT 5.19% , FOR 1971 AT 5.05% , FOR 1972 AT 4.91% , FOR 1973 AT 5.87% , FOR 1974 AT 5.05% AND FOR 1975 AT 6.07% IN TERMS OF VOLUME OF SALES .
IT IS NOT DISPUTED THAT IT SPECIALIZES IN THE PRODUCTION OF BARGAIN-RANGE LONG- PLAYING RECORDS AND MUSIC CASSETTES AND , WITHIN THAT CATEGORY , IN PARTICULAR IN THE PRODUCTION OF SOUND RECORDINGS FOR CHILDREN AND YOUNG PERSONS , SO THAT ITS SHARE OF THE MARKET IN BARGAIN-RANGE RECORDINGS AND THOSE FOR CHILDREN MAY BE EXPRESSED AS APPRECIABLY HIGHER PERCENTAGES .
FINALLY , IT IS NOT DISPUTED THAT FOR 1975 MILLER ' S SALES AMOUNTED TO A TOTAL OF DM 34 376 167 FOR THE DOMESTIC MARKET AND EXPORTS .
IN THE COURSE OF THE PROCEDURE , DURING LENGTHY DEBATES CONCERNING THE PERCENTAGES , THE APPLICANT MAINTAINED THAT IT WAS IMPOSSIBLE TO OBTAIN ACCURATE STATISTICAL DATA CONCERNING THE MARKET IN QUESTION , THAT THE FIGURES MUST ACCORDINGLY BE TREATED WITH CAUTION AND THAT THEY GIVE AN EXCESSIVELY FAVOURABLE IMPRESSION OF ITS POSITION ON THE MARKET , BUT THIS ARGUMENT CANNOT AFFECT THE SUBSTANCE OF THE SAID DATA .
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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25 It is settled law that an undertaking having a statutory monopoly in a substantial part of the common market may be regarded as having a dominant position within the meaning of Article 86 of the Treaty (Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, paragraph 28; Case C-260/89 ERT v DRP [1991] ECR I-2925, paragraph 31, and Case C-179/90, paragraph 14).
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14 In the second place, as to the existence of exclusive rights, it should be stated first that with regard to the interpretation of Article 86 of the Treaty the Court has consistently held that an undertaking having a statutory monopoly over a substantial part of the common market may be regarded as having a dominant position within the meaning of Article 86 of the Treaty (see the judgments in Case C-41/90 Hoefner and Elser v Macrotron [1991] ECR I-1979, paragraph 28; Case C-260/89 ERT v DEP [1991] ECR I-2925, paragraph 31).
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52 The provision at issue in the main proceedings forms part of a restricted concept of equality of opportunity. It is not places in employment which are reserved for women but places in training with a view to obtaining qualifications with the prospect of subsequent access to trained occupations in the public service.
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50. In that context, as the referring court observed, it is settled case-law that the principle of fiscal neutrality prevents any general distinction between lawful and unlawful transactions. Consequently, the mere fact that conduct amounts to an offence does not entail exemption from tax; that exemption applies only in specific circumstances where, owing to the special characteristics of certain goods or services, any competition between a lawful economic sector and an unlawful sector is precluded (see, inter alia, Case C-158/98 Coffeeshop ‘Siberië ’ [1999] ECR I-3971, paragraphs 14 and 21, and Case C‑455/98 Salumets and Others [2000] ECR I‑4993, paragraph 19). It is common ground, however, that that is not the case with either the computer components or the vehicles at issue in the main proceedings.
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21 As noted in paragraph 14 of this judgment, the Court has consistently held that the principle of fiscal neutrality prevents any general distinction in the levying of VAT as between lawful and unlawful transactions. Consequently, the mere fact that conduct amounts to an offence is not sufficient to justify exemption from VAT. The exception applies only in specific situations where, owing to the special characteristics of certain products or certain services, any competition between a lawful economic sector and an unlawful sector is precluded.
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75. Dans ces circonstances, il appartient à la Cour, dans l’exercice de son pouvoir d’appréciation, de fixer le montant de cette somme forfaitaire de sorte qu’elle soit, d’une part, adaptée aux circonstances et, d’autre part, proportionnée à l’infraction commise (voir arrêts Commission/Grèce, C‑378/13, EU:C:2014:2405, point 75, et Commission/Italie, C‑196/13, EU:C:2014:2407, point 117).
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105. The Court has also held that Article 46 EC permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for the public health, and even the survival, of the population ( Kohll , paragraph 51; Smits and Peerbooms , paragraph 74; and Müller-Fauré and van Riet , paragraph 67).
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51 Article 56 of the Treaty permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of a treatment facility or medical service on national territory is essential for the public health and even the survival of the population (see, with respect to public security within the meaning of Article 36 of the Treaty, Case 72/83 Campus Oil v Minister for Industry and Energy [1984] ECR 2727, paragraphs 33 to 36).
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38 Where there is an organisational and functional link between an appeal chamber and the regional finance authority which adopts the decisions contested before it, it is impossible to regard the chamber as a third party in relation to that administrative authority.
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65
Where criminal proceedings have taken place at several instances which have given rise to successive decisions, the Court of Justice has held that that concept refers to the last instance in those proceedings during which a court, after assessing the case in fact and in law, made a final ruling on the guilt of the person concerned and imposed a penalty on him (see, to that effect, judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraphs 81, 83, 89, 90 and 98).
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83
It is the judicial decision finally disposing of the case on the merits, in the sense that there are no further avenues of ordinary appeal available, which is decisive for the person concerned, since it directly affects his personal situation with regard to the finding of guilt and, where appropriate, the determination of the custodial sentence to be served.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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49. In that regard, the Court held that, as regards the amount of inheritance tax payable in respect of immovable property in Germany, there is no objective difference justifying the unequal tax treatment of the situation in which neither person resides in that Member State and the situation in which at least one of them resides there. The amount of inheritance tax relating to an immovable property in Germany is calculated pursuant to the ErbStG on the basis both of the value of the property and of the personal link between the deceased and the inheritor. Neither of those criteria depends on the place of residence of the deceased and the inheritor (see, to that effect, Jäger , paragraph 44; Eckelkamp and Others , paragraph 61; and Arens-Sikken , paragraph 55).
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44. The calculation of the tax is, under the national legislation at issue in the main proceedings, directly linked to the value of the assets included in the estate, with the result that there is objectively no difference in situation such as to justify unequal tax treatment so far as concerns the level of inheritance tax payable in relation to, respectively, an asset situated in Germany and an asset situated in another Member State. A situation such as that of Mr Jäger is therefore comparable to that of any other heir whose inheritance consists only of agricultural land and forestry situated in Germany bequeathed by a person domiciled in that State.
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12 In Case C-215/94 Mohr v Finanzamt Bad Segeberg [1996] ECR I-959, the Court ruled on the question whether an undertaking to discontinue milk production given by a farmer under a Community regulation fixing compensation for the definitive discontinuation of such production constitutes a supply of services for the purposes of the Sixth Directive.
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59. It should be noted, first, that by arguing in that regard that the withdrawal of the contested act was not effected within a reasonable period, the appellant relies on case-law relating to retroactive withdrawal of an unlawful administrative act creating subjective rights (see Case C-54/77 Herpels v Commission [1978] ECR 585, paragraph 38, Case C-14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 10, Case C-15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, paragraph 12, and Case C-90/95 de Compte v Parliament [1997] ECR I-1999, paragraph 35).
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38ALTHOUGH THE RETROACTIVE WITHDRAWAL OF A WRONGFUL OR ERRONEOUS DECISION IS GENERALLY SUBJECT TO VERY STRICT CONDITIONS , ON THE OTHER HAND THE REVOCATION OF SUCH A DECISION AS REGARDS THE FUTURE IS ALWAYS POSSIBLE .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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59. The General Court thus — in accordance with the settled case-law of the Court of Justice which requires that, in assessing the distinctive character of a mark, account be taken of the overall impression produced by that mark (see, to that effect, Case C‑238/06 P Develey v OHIM EU:C:2007:635, paragraph 82 and the case-law cited) — carried out an overall examination of the capacity of the mark at issue to denote the commercial origin, and based that examination on the facts, arguments and evidence produced by the parties, in relation to every group of products covered by the application for registration of that mark. The General Court did not therefore err in law as alleged by Louis Vuitton.
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82. In order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered. That does not mean, however, that one may not first examine each of the individual features of the get-up of that mark in turn. It may be useful, in the course of the overall assessment, to examine each of the components of which the trade mark concerned is composed (see, to that effect, Case C-286/04 P Eurocermex v OHIM [2005] ECR I‑5797, paragraphs 22 and 23, and the case-law cited).
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46 Furthermore, as stated above, for the purposes of calculating benefits under Community rules, the competent institution must apply Regulation No 1408/71 in its entirety and, in particular, take into account the second sentence of Article 12(2) thereof under which national provisions for reduction may not be invoked against the worker.
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114. In order to be justified under Articles 43 EC and 49 EC, it is also necessary, having regard to the obstacles which it creates in relation to the right to the freedom to provide services or the freedom of establishment, that such an authorisation system should satisfy the requirements which follow in that respect from the case-law, particularly as to its non-discriminatory character and its proportionality ( Placanica and Others , paragraphs 48 and 49).
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49. The restrictive measures imposed by the national legislation should therefore be examined in turn in order to determine in each case in particular whether the measure is suitable for achieving the objective or objectives invoked by the Member State concerned and whether it does not go beyond what is necessary in order to achieve those objectives. In any case, those restrictions must be applied without discrimination (see to that effect Gebhard , paragraph 37, as well as Gambelli and Others , paragraphs 64 and 65, and Case C‑42/02 Lindman [2003] ECR I‑13519, paragraph 25).
The licensing requirement
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10 S' AGISSANT DES DROITS LIQUIDES SUR LA BASE DE L' ANCIEN REGIME, L' ARTICLE 94, PARAGRAPHE 5, DU REGLEMENT N* 1408/71 DISPOSE QUE LES "DROITS DES INTERESSES QUI ONT OBTENU, ANTERIEUREMENT AU 1ER OCTOBRE 1972 OU A LA DATE D' APPLICATION DU PRESENT REGLEMENT SUR LE TERRITOIRE DE L' ETAT MEMBRE INTERESSE, LA LIQUIDATION D' UNE PENSION OU D' UNE RENTE PEUVENT ETRE REVISES A LEUR DEMANDE, COMPTE TENU DES DISPOSITIONS DE CE REGLEMENT ". COMME LA COUR L' A JUGE DANS SON ARRET DU 13 OCTOBRE 1976 ( SAIEVA, 32/76, REC . P . 1523 ), LES DISPOSITIONS TRANSITOIRES DU REGLEMENT N* 1408/71, PARMI LESQUELLES FIGURE L' ARTICLE 94, PARAGRAPHE 5, SONT INSPIREES DU PRINCIPE QUE LES PRESTATIONS ACCORDEES SELON LE REGIME DE L' ANCIEN REGLEMENT ET QUI SONT PLUS AVANTAGEUSES QUE LES PRESTATIONS RESULTANT DU NOUVEAU REGLEMENT NE SERONT PAS REDUITES . LE BUT DE CETTE DISPOSITION EST DONC DE DONNER A L' INTERESSE LE DROIT DE DEMANDER, EN SA FAVEUR, LA REVISION DE PRESTATIONS LIQUIDEES SOUS LE REGIME DE L' ANCIEN REGLEMENT . PAR CONSEQUENT, L' INSTITUTION COMPETENTE D' UN ETAT MEMBRE NE PEUT PAS SE SUBSTITUER A UN ASSURE POUR LA REVISION DES DROITS OBTENUS PAR CELUI-CI AVANT L' ENTREE EN VIGUEUR DU REGLEMENT N* 1408/71 .
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28. Specifically, the Court has repeatedly held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation (see Case C‑78/91 Hughes [1992] ECR I‑4839, paragraph 14). Further, the Court has made it clear that characteristics which are purely formal must not be considered relevant criteria for the classification of benefits (See Case C‑228/07 Petersen [2008] ECR I‑6989, paragraph 21 and the case-law cited). Consequently, the fact that a benefit is governed by national tax law is not conclusive for the purpose of evaluating its constituent elements.
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14 The Court has repeatedly held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of the particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation.
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27 It should be noted as a preliminary that, according to settled case-law, an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects (see Case 22/70 Commission v Council [1971] ECR 263, paragraph 42, and Case C-366/88 France v Commission [1990] ECR I-3571, paragraph 8).
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30. In the present case, it must be pointed out that, when asked by the Court, the referring court indicated that the case was still pending. Since the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of European Union law which they need in order to decide the disputes before them (see, inter alia, Case C‑83/91 Meilicke [1992] ECR I‑4871, paragraph 22, and Case C‑445/06 Danske Slagterier [2009] ECR I‑2119, paragraph 65), such an indication by a national court cannot, in principle, be called into question by the parties to the main proceedings.
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22 It has consistently been held (see, in the first place, Case 16/65 Schwarze v Einfuhr- und Vorratsstelle fuer Getreide und Futtermittel [1965] ECR 877 and, most recently, Case C-147/91 Criminal proceedings against Ferrer Laderer [1992] ECR I-4097, paragraph 6) that the procedure provided for by Article 177 is an instrument for cooperation between the Court of Justice and the national courts.
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61. Par conséquent, il convient de constater que, en n’ayant pas pris, dans les délais impartis, toutes les mesures nécessaires pour supprimer les aides déclarées illégales et incompatibles avec le marché commun par la décision du 14 septembre 2005 ainsi que pour récupérer lesdites aides auprès des bénéficiaires, la République hellénique a manqué aux obligations qui lui incombent en vertu des articles 2 à 4 de cette décision.
Sur les dépens
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35. Accordingly, it is the Court’s established case-law that the freedom to provide services conferred by Article 56 TFEU on Member State nationals, and thus on European Union citizens, includes ‘passive’ freedom to provide services, namely the freedom for recipients of services to go to another Member State in order to receive a service there, without being hindered by restrictions ( Luisi and Carbone , paragraph 16; Case 186/87 Cowan [1989] ECR 195, paragraph 15; Bickel and Franz , paragraph 15; Case C-348/96 Calfa [1999] ECR I-11, paragraph 16; and Case C‑215/03 Oulane [2005] ECR I‑1215, paragraph 37).
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15 On that last point, in its judgment of 31 January 1984 in Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro (( 1984 )) ECR 377, the Court held that the freedom to provide services includes the freedom for the recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions, and that tourists, among others, must be regarded as recipients of services .
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27. The view can reasonably be taken that a person involved in an infringement of competition law, faced with the possibility of such disclosure, would be deterred from taking the opportunity offered by such leniency programmes, particularly when, pursuant to Articles 11 and 12 of Regulation No 1/2003, the Commission and the national competition authorities might exchange information which that person has voluntarily provided.
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34. The right to reside within the territory of the Member States under Article 18(1) EC is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty subject to the limitations and conditions laid down by the EC Treaty and by the measures adopted to give it effect (Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraphs 84 and 85).
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84 As regards, in particular, the right to reside within the territory of the Member States under Article 18(1) EC, that right is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty. Purely as a national of a Member State, and consequently a citizen of the Union, Mr Baumbast therefore has the right to rely on Article 18(1) EC.
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21. Cette exigence ne saurait toutefois aller jusqu’à imposer en toute hypothèse une coïncidence parfaite entre l’énoncé des griefs dans la lettre de mise en demeure, le dispositif de l’avis motivé et les conclusions de la requête, à condition que l’objet du litige n’ait pas été étendu ou modifié (arrêts précités Commission/Espagne, point 28, et Commission/Allemagne, point 37).
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49 That interpretation of the directive is in accordance with the judgment given in Case 380/87 Enichem Base and Others v Comune di Cinisello Balsamo [1989] ECR 2491, paragraphs 19 to 24. In that judgment, in which the Court ruled on the obligation for Member States to communicate to the Commission national draft rules falling within the scope of an article of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), the Court held that neither the wording nor the purpose of the provision in question provided any support for the view that failure by the Member States to observe their obligation to give notice in itself rendered unlawful the rules thus adopted. In this regard, the Court expressly considered that the provision in question was confined to imposing an obligation to give prior notice which did not make entry into force of the envisaged rules subject to the Commission' s agreement or lack of opposition and which did not lay down the procedure for Community control of the drafts in question. The Court therefore concluded that the provision under examination concerned relations between the Member States and the Commission but that it did not afford individuals any right capable of being infringed in the event of breach by a Member State of its obligation to give prior notice of its draft regulations to the Commission.
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23 It follows from the foregoing that the abovementioned provision concerns relations between the Member States and the Commission and does not give rise to any right for individuals which might be infringed by a Member State' s breach of its obligation to inform the Commission in advance of draft rules .
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15 In view of the wording of the other questions and the grounds of the decision making the reference, the essential point raised by the national tribunal is whether an employer's refusal to grant travel concessions to the person of the same sex with whom an employee has a stable relationship constitutes discrimination prohibited by Article 119 of the Treaty and Directive 75/117, where such concessions are granted to an employee's spouse or the person of the opposite sex with whom an employee has a stable relationship outside marriage.
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31. The general principle of equal treatment, as a general principle of Community law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case 106/83 Sermide [1984] ECR 4209, paragraph 28; Joined Cases C‑133/93, C‑300/93 and C‑362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraphs 50 and 51; Case C‑313/04 Franz Egenberger [2006] ECR I‑6331, paragraph 33, and Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraph 23).
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23. The general principle of equal treatment, as a general principle of Community law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case 106/83 Sermide [1984] ECR 4209, paragraph 28; Joined Cases C‑133/93, C‑300/93 and C‑362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraphs 50 and 51; and Case C‑313/04 Franz Egenberger [2006] ECR I‑6331, paragraph 33).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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27
In that regard, it should be noted that, it is true that, under the transitional arrangements for tax applicable to trade within the European Union, the identification of taxable persons subject to VAT by means of an individual number also facilitates the determination of the Member State in which the final consumption of the goods delivered takes place (judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 57, and 14 March 2013, Ablessio, C‑527/11, EU:C:2013:168, paragraph 19). Article 214(1)(b) of the VAT Directive requires Member States to take all measures necessary to identify by means of an individual number, in particular, every taxable person or non-taxable legal person who makes intra-Community acquisitions.
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57. Under the transitional arrangements for tax applicable to trade within the European Union, the purpose of which is the transfer of the tax revenue to the Member State in which final consumption of the goods supplied takes place (see Teleos and Others , paragraph 36, and Joined Cases C-536/08 and C-539/08 X and fiscale eenheid Facet-Facet Trading [2010] ECR I-3581, paragraph 30), the identification of taxable persons subject to VAT by means of an individual number facilitates the determination of the Member State in which that final consumption takes place.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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26. That said, it must be borne in mind that the prevention of tax evasion, tax avoidance and abuse is an objective recognised and encouraged by Directive 2006/112. In that connection, the Court has held that European Union law cannot be relied on for abusive or fraudulent ends. It is therefore for the national courts and authorities to refuse the right of deduction, if it is shown, in the light of objective evidence, that that right is being relied on for fraudulent or abusive ends (see Bonik , paragraphs 35 to 37 and the case-law cited).
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35. That being so, it must also be borne in mind that the prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112 (see, inter alia, Halifax and Others , paragraph 71; Kittel and Recolta Recycling , paragraph 54; Case C-285/09 R [2010] ECR I-12605, paragraph 36; Case C-504/10 Tanoarch [2011] ECR I-10853, paragraph 50; and Mahagében and Dávid , paragraph 41).
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17 It is clear from the foregoing that whilst the effects of a judgment of the Court providing an interpretation normally date back to the time at which the rule interpreted came into force, it is also necessary, if that interpretation is to be applied by the national court to facts predating that judgment, for the detailed procedural rules governing legal proceedings under national law to have been complied with as regards matters both of form and of substance.
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31. Basing its reasoning in that respect, inter alia, on the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules and on the fact that a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by Community law, the Court infers that the protection of those rights would be weakened – and the full effectiveness of the Community rules conferring such rights would be brought into question – if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance (see Köbler , paragraphs 33 to 36).
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33. In the light of the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance.
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52. Indeed, a monetary policy measure cannot be treated as equivalent to an economic policy measure merely because it may have indirect effects on the stability of the euro area (see, by analogy, judgment in Pringle , C‑370/12, EU:C:2012:756, paragraph 56).
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62. It is clear from the case-law of the Court that, under the second indent of Article 293 EC, the abolition of double taxation is one of the objectives of the European Community to be attained by the Member States. In the absence of unifying or harmonising measures at Community level for the elimination of double taxation, the Member States retain competence for determining the criteria for taxation on income and wealth with a view to eliminating double taxation by means, inter alia, of international agreements. In those circumstances, the Member States remain at liberty to determine the connecting factors for the allocation of fiscal jurisdiction by means of bilateral agreements (see Case C‑336/96 Gilly [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; Case C‑265/04 Bouanich [2006] ECR I‑923, paragraph 49; and also Denkavit Internationaal and Denkavit France , paragraph 43).
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49. It is to be noted that under the second indent of Article 293 EC, the abolition of double taxation is one of the objectives of the Community to be attained by the Member States. In the absence of unifying or harmonising measures at Community level for the elimination of double taxation, the Member States retain competence for determining the criteria for taxation on income and wealth with a view to eliminating double taxation by means, inter alia, of international agreements. In those circumstances, the Member States remain at liberty to determine the connecting factors for the allocation of fiscal jurisdiction by means of bilateral agreements (see Case C-336/96 Gilly [1998] ECR I-2793, paragraphs 24 and 30; Saint-Gobain , paragraph 57; and D. , paragraph 52).
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29 The statement of objections must specify clearly the facts upon which the Commission relies and its classification of those facts.
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34
Lastly, the Court held that injunctions must be equitable and proportionate. They must not therefore be excessively expensive and must not create barriers to legitimate trade. Nor can the intermediary be required to exercise general and permanent oversight over its customers. By contrast, the intermediary may be forced to take measures which contribute to avoiding new infringements of the same nature by the same market-trader from taking place (see, to that effect, judgment of 12 July 2011 in L’Oréal and Others, C‑324/09, EU:C:2011:474, paragraphs 138 to 141).
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139. First, it follows from Article 15(1) of Directive 2000/31, in conjunction with Article 2(3) of Directive 2004/48, that the measures required of the online service provider concerned cannot consist in an active monitoring of all the data of each of its customers in order to prevent any future infringement of intellectual property rights via that provider’s website. Furthermore, a general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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28. Likewise, although it is for the referring court alone to rule on the classification of those terms in accordance with the particular circumstances of the case, the fact remains that the Court has jurisdiction to elicit from the provisions of Directive 93/13, in this case the provisions of Article 4(2) thereof, the criteria that the national court may or must apply when examining contractual terms (judgment in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 45).
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45. In that regard, although it is for the national court alone to rule on the classification of that term in accordance with the particular circumstances of the case, the fact remains that the Court has jurisdiction to elicit from the provisions of Directive 93/13, in this case the provisions of Article 4(2), the criteria that the national court may or must apply when examining a contractual term (see, to that effect, in particular, RWE Vertrieb EU:C:2013:180, paragraph 48 and the case-law cited).
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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.
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74. It is also settled case-law that the first paragraph of Article 45 EC is an exception to the fundamental rule of freedom of establishment. As such, the exception must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests it allows the Member States to protect ( Commission v Greece , paragraph 7; Commission v Spain , paragraph 34; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 45; Case C‑393/05 Commission v Austria [2007] ECR I‑10195, paragraph 35; Case C‑404/05 Commission v Germany [2007] ECR I‑10239, paragraphs 37 and 46; and Commission v Portugal , paragraph 34).
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34. On the other hand, it should be borne in mind that, as a derogation from the fundamental rule of freedom of establishment, Article 45 must be interpreted in a manner which limits its scope to what is strictly necessary in order to safeguard the interests which it allows the Member States to protect (see, inter alia, Case 147/86 Commission v Greece [1988] ECR 1637, paragraph 7; Case C-114/97 Commission v Spain [1998] ECR I-6717, paragraph 34; and Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, paragraph 45).
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620 ALTHOUGH THIS SITUATION CANNOT LEAD TO ACCEPTANCE OF PRACTICES WHICH ARE LIKELY TO MAKE STILL WORSE WHAT ARE, FROM THE POINT OF VIEW OF THE TREATY, THE DISADVANTAGES OF SUCH A SYSTEM, IT NEVERTHELESS MEANS THAT THE BEHAVIOUR OF THE PARTIES CONCERNED CANNOT BE REGARDED WITH THE USUAL SEVERITY .
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73. It must however be made clear that a Member State cannot refuse to allow taxable persons who have chosen to treat capital goods used both for business and private purposes as business assets to deduct immediately and in full the input VAT payable on the acquisition of those goods, which they are entitled to do in accordance with the settled case‑law cited in paragraph 63 of this judgment (see, to that effect, Charles and Charles‑Tijmens , paragraph 28).
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28. On the other hand, the second subparagraph of Article 6(2) of the Sixth Directive cannot have the result that it is possible for the Member States to refuse to allow taxable persons who have chosen to treat capital goods used both for business and private purposes as business goods to deduct immediately and in full the input VAT due on the acquisition of those goods, which they are entitled to do in accordance with the settled case-law cited in paragraph 24 of this judgment. Such a restriction on the right to deduct would be contrary to that provision.
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34. It is clear from this examination of the aims of Regulation No 1103/97 and, in particular, from the reference made by the 11th recital to national rounding rules for monetary amounts that the regulation sets only minimum rules in relation to the rounding of certain amounts and leaves it to national authorities to maintain or adopt rules which are more conducive to achieving a neutral changeover to the single currency. The actual wording of the 11th recital shows that the detailed rules on the rounding of monetary amounts found in Regulation No 1103/97 are not intended to provide an exhaustive set of rules for intermediate computations in relation to such amounts.
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77
In the first place, as regards the appellant’s argument concerning the rules derived from case-law restricting the conditions in which the Commission may, under Regulation No 1049/2001, disclose to third parties documents in the administrative file relating to a proceeding under Articles 101 TFEU and 102 TFEU, it must be stated, at the outset, that Regulation 1049/2001 does not apply in the context of the present case, which relates to the publication of information in a Commission decision finding an infringement of Article 101 TFEU. The question arises, therefore, of whether, despite the fact that that regulation does not apply to the present case, the case-law formulated on the basis of that regulation, under which the Court acknowledged that there was a general presumption capable of justifying the refusal to disclose the documents in a file relating to a proceeding under Article 101 TFEU, must, nonetheless, be transposed to the publication of decisions on infringements of Article 101 TFEU (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraphs 92 and 93).
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93. In the light of the foregoing, it must be found that, for the purposes of the application of the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001, the Commission is entitled to presume, without carrying out a specific, individual examination of each of the documents in a file relating to a proceeding under Article 81 EC, that disclosure of such documents will, in principle, undermine the protection of the commercial interests of the undertakings involved in such a proceeding and the protection of the purpose of the investigations relating to the proceeding (see, by analogy, Commission v Technische Glaswerke Ilmenau, paragraph 61; Commission v Éditions Odile Jacob , paragraph 123; Commission v Agrofert Holding , paragraph 64; and LPN and Finland v Commission , paragraph 64).
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13 It follows from the provisions of the Directive quoted above that the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex, as is a refusal to appoint a pregnant woman ( see judgment of today' s date in Case C-177/88 Dekker v VJM-Centrum [1990] ECR I-3941 ).
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24. It should be noted at the outset that, according to consistent case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 40; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 36; and Case C‑379/05 Amurta [2007] ECR I‑9569, paragraph 16).
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16. It should be noted as a preliminary observation that, according to consistent case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 40; and Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 36).
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38 In the present cases, the applicants do not dispute the fact that they acted as customs agents, that they also assumed responsibility for the correctness of the customs documents and that the certificates produced by them subsequently proved to be invalid. The facts correspond exactly to the considerations which led the Court, in the judgment cited above, to conclude that "special circumstances" within the meaning of Article 13 of Regulation No 1430/79 did not exist. The Commission was therefore right to base the reasoning of the disputed decisions on that judgment.
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25. As regards gravity, the Court has held that, whereas the basic amount of the fine is set according to the infringement, its gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. According to the Court, to take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules (see Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑0000, paragraph 71).
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71. It follows from the case‑law (see, in particular, Dansk Rørindustri and Others v Commission , paragraphs 240 to 242) that, whereas the basic amount of the fine is set according to the infringement, its gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. To take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules.
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16 In so far as the Italian court raises the question of the compatibility of the Italian legislation with the Marpol Convention, it is sufficient to find that the Community is not a party to that convention. Moreover, it does not appear that the Community has assumed, under the EEC Treaty, the powers previously exercised by the Member States in the field to which that convention applies, nor, consequently, that its provisions have the effect of binding the Community (see the judgment in Joined Cases 21/72 to 24/72 International Fruit Company and Others v Produktschap voor Groenten en Fruit [1972] ECR 1219, paragraph 18).
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53
The latter case related to private undertakings that had not been appointed by the State to administer a State resource, but were bound by an obligation to purchase by means of their own financial resources (see judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 74; of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 35; and order of 22 October 2014, Elcogás, C‑275/13, not published, EU:C:2014:2314, paragraph 32).
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35. As the Court has already had occasion to point out – in paragraph 74 of the judgment in Essent Netwerk Noord and Others – in the case which gave rise to the judgment in PreussenElektra , the private undertakings had not been appointed by the Member State concerned to manage a State resource, but were bound by an obligation to purchase by means of their own financial resources.
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44. In those circumstances, it must be found that those two obligations constitute a restriction on the freedom to provide services.
Justification for the restrictions on the freedom to provide services
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44. As regards the financial consequences which might ensue for the employer from the obligation to reinstate a pregnant employee unable for the duration of the pregnancy, to carry out all her duties, the Court has already held that discrimination on grounds of sex cannot be justified on grounds relating to the financial loss for an employer (Dekker , paragraph 12; Mahlburg , paragraph 29; and Tele Danmark , paragraph 28).
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12 In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex . A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy . Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave .
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156. According to settled case-law, an infringement of Article 81(1) EC can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (judgment in Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
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42. After all available internal procedures have been exhausted, the Court of Justice shall have jurisdiction in any dispute between the ECB and a member or a former member of its staff to whom these Conditions of Employment apply.
Such jurisdiction shall be restricted to the legality of the measure or decision, unless the dispute is of a financial nature, in which case the Court of Justice shall have unlimited jurisdiction.’
4. Pursuant to Article 12.3 of the ESCB Statute, the Governing Council adopted the Rules of Procedure of the ECB, as amended on 22 April 1999 (OJ 1999 L 125, p. 34), which provide inter alia as follows:
‘Article 11
Staff of the ECB
11.1. Each member of the staff of the ECB shall be informed of his/her position within the structure of the ECB, his/her reporting line and his/her professional responsibilities.
...
Article 21
Conditions of Employment
21.1. The employment relationship between the ECB and its staff shall be determined by the Conditions of Employment and the Staff Rules.
21.2. The Conditions of Employment shall be approved and amended by the Governing Council upon a proposal from the Executive Board. The General Council shall be consulted under the procedure laid down in these Rules of Procedure.
21.3. The Conditions of Employment shall be implemented by Staff Rules, which shall be adopted and amended by the Executive Board.’
Background to the dispute
5. Mr Pflugradt has been employed by the ECB since 1 July 1998. He was appointed to the Directorate-General for Information Systems (‘DG IS’), where from the time he was recruited he has worked as UNIX coordinator.
6. On 9 October 1998 the appellant agreed to the terms of a document entitled ‘UNIX coordinator responsibilities’, which contained a list of the various duties attaching to his post. Those duties included conducting appraisals with members of the UNIX team.
7. On 13 October 1998 the ECB sent the appellant a letter of appointment with retroactive effect to 1 July 1998.
8. On 14 October 1999 the Director-General of DG IS informed the appellant that he would not be responsible for preparing performance appraisals for members of the UNIX team.
9. On 23 November 1999 the appellant had an appraisal interview with his head of division. The head of division set out his assessment of the appellant in the latter’s performance appraisal for 1999, which is the document contested in Case T‑178/00.
10. On 12 January 2000 the appellant put forward several observations on the assessment made of him and wrote on his performance appraisal for 1999 that he reserved the right to reject an unfair appraisal.
11. On 10 March 2000 the appellant applied, under Article 41 of the Conditions of Employment, for an administrative review of the performance appraisal for 1999 on the ground that it was based on factual errors and therefore infringed his contractual rights. He also requested another appraisal for 1999, to be conducted by other persons who would be unbiased.
12. On 10 April 2000 the Director-General of DG IS rebutted the appellant’s claims that the performance appraisal for 1999 contained factual errors and turned down the request for another appraisal procedure to be initiated.
13. On 9 May 2000 the appellant submitted a complaint to the President of the ECB under the grievance procedure, based essentially on the grounds relied on in the context of the administrative review procedure.
14. On 8 June 2000 the President of the ECB dismissed that complaint.
15. By note of 28 June 2000 the Director-General of DG IS sent the appellant a list of his main responsibilities, stating that that list would provide the basis for his annual appraisal. That document was the subject of the action in Case T-341/00.
The judgment under appeal
16. Having joined the two cases (T-178/00 and T-341/00), the Court of First Instance first found that, in his action in Case T-178/00, Mr Pflugradt was seeking annulment of the performance appraisal for 1999 first, in so far as it withdraws from him responsibility for appraising members of the UNIX team and, second, in so far as it contains various assessments of his work.
17. In dismissing those claims, the Court held, in paragraphs 49 and 53 of the judgment under appeal, that although the employment relationship between the ECB and its staff is of a contractual nature and although the binding force of contracts precludes the ECB as an employer from imposing alterations to the conditions under which employment contracts are performed without the consent of the staff members concerned, that principle applies only to the essential elements of the employment contract.
18. In that connection, the Court of First Instance held in paragraph 54 of the judgment under appeal:
‘The ECB, like any other institution or undertaking, has management powers in the organisation of its services and in the management of its staff. As a Community institution it even enjoys wide discretion in the organisation of its services and in the assignment of its staff to perform its public service responsibilities (see, by analogy, the judgments of the Court of Justice in Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 17, and Case C‑294/95 P Ojha v Commission [1996] ECR I-5863, paragraph 40; and the judgments of the Court of First Instance in Case T-33/90 Von Bonkewitz-Lindner v Parliament [1991] ECR II-1251, paragraph 88, and Case T-176/97 Hick v ESC [1998] ECR-SC I-A-281 and II-845, paragraph 36). It may therefore over time develop its employment relationships with its staff in the best interests of the service in order to arrive at an effective organisation of work and a consistent allocation of the various duties among members of the staff and to adapt to varying needs. A member of staff recruited to a post for an indefinite period which might last until he reached the age of 65 cannot reasonably expect that every aspect of internal organisation will remain unchanged for his entire career or that he will retain throughout his career the responsibilities allocated to him at the time of his appointment.’
19. In paragraphs 58 to 60 of the judgment under appeal, the Court of First Instance then held:
‘58 It is common ground that despite the alteration of his responsibilities the applicant retained his job as UNIX coordinator, falling within the category of professionals and Grade G, with the relevant remuneration.
59 It is clear from the job description of 5 October 1998 that the post of UNIX coordinator is essentially of a technical nature, and that the staff-related and administrative duties are merely secondary. Thus, withdrawal of the duty of appraising members of the UNIX team did not by itself result in downgrading, as a whole, the applicant’s duties clearly below the responsibilities corresponding to his job. In that regard it is appropriate to point out that it is common ground that the applicant has never had to conduct appraisals for members of the UNIX team, as that responsibility was withdrawn from him even before the ECB embarked upon the first round of annual appraisals for its staff. In those circumstances the alteration in question does not represent a downgrading of the applicant’s job and cannot therefore be regarded as infringing an essential element of the employment contract.
60 Consequently, the applicant’s complaints are unfounded. That plea must therefore be rejected.’
20. In dismissing the plea concerning the assessment made in the performance appraisal for 1999, the Court of First Instance held, in paragraphs 68 to 71 of the judgment under appeal:
‘68 Although he claims that the performance appraisal for 1999 is based on material factual errors, the applicant is seeking in fact to challenge the validity of the assessments made by his superiors of his work during 1999.
69 It is not, however, for the Court to substitute its assessment for that of the persons responsible for appraising the applicant’s work. The ECB, like other institutions and bodies of the Community, enjoys wide discretion in appraising the work of members of its staff. Judicial review by the Court of the assessments contained in the annual performance appraisal of a member of the ECB staff relates only to possible procedural irregularities, manifest factual errors in such assessments and any misuse of power (see, by analogy, Case T-63/89 Latham v Commission [1991] ECR II-19, paragraph 19).
70 In the present case, as the applicant has failed to establish the existence of circumstances of that nature his complaints cannot be accepted.
71 Moreover, the reasoning in the performance appraisal for 1999 is sufficiently precise to satisfy the requirements of Article 253 EC, applicable under Article 34.2 of the ESCB Statute to decisions taken by the ECB.’
21. Second, the Court of First Instance found that Mr Pflugradt, in his submissions in Case T-341/00, sought to obtain the annulment of the decision contained in the note of 28 June 2000 in which the ECB, in his opinion, altered his responsibilities.
22. In paragraphs 81 and 82 of the judgment under appeal, the Court of First Instance accepted that that note constituted a measure adversely affecting the applicant and therefore declared the application admissible.
23. However, it dismissed those submissions on the merits, holding in paragraphs 89 and 90 of that judgment:
‘89 First, as the Court has held in paragraph 54 in relation to Case T-178/00, the applicant cannot reasonably expect to retain until retirement age certain specific duties which may have been allocated to him when he was appointed by the ECB. Therefore the applicant’s claims with regard to his allegedly exclusive areas of responsibility must be dismissed.
90 Second, as regards whether the ECB manifestly exceeded the limits of its organisational authority by unilaterally altering the applicant’s responsibilities, it should be noted first that it is not disputed that those alterations were made in the interest of the service. Secondly, the applicant has not supported his arguments with detailed evidence sufficient to demonstrate that those alterations affect essential aspects of his employment contract by reducing his responsibilities as a whole clearly below those which correspond to his post and that they therefore constitute a downgrading of that post. On the contrary, it is plain that the applicant retains his essential duties with regard to the UNIX systems and the coordination of the UNIX specialists. The applicant’s complaints regarding an alleged downgrading of his post must therefore be rejected.’
Forms of order sought
24. Mr Pflugradt claims that the Court should:
– annul the judgment under appeal;
– annul the performance appraisal for 1999;
– annul the note of 28 June 2000 in so far as it alters the responsibilities of the appellant;
– order the ECB to pay the costs.
25. The ECB contends that the Court should:
– dismiss the appeal;
– order Mr Pflugradt to pay the costs.
The appeal
26. The many arguments put forward by Mr Pflugradt must be regarded as constituting claims that the Court of First Instance made errors of law, distorted pleas, arguments and evidence, disregarded the rules of evidence and that its judgment was vitiated by contradictory grounds.
27. It is logical to group these claims into three sets of pleas concerning, respectively, the contractual nature of the employment relationship between the ECB and its staff, the misapplication of the principles governing the Community civil service and the facts on which the performance appraisal for 1999 was based.
The pleas concerning the contractual nature of the employment relationship between the ECB and its staff
28. Mr Pflugradt submits that, as the legal relationship between the ECB and its staff is of a contractual nature as provided by the first sentence of Article 9(a) of the Conditions of Employment, defined pursuant to Article 36.1 of the ESCB Statute, the Court of First Instance could not, without committing an error in law, base its determination of the ECB’s powers of organisation on the case-law on the rules on assignment of officials and other servants referred to in Article 283 EC.
29. As a preliminary point, it must be observed that, under Article 36.2 of the ESCB Statute and Article 42 of the Conditions of Employment, the Court’s jurisdiction in disputes between the ECB and its staff is restricted to the legality of the measure or decision, unless the dispute is of a financial nature.
30. In the present case, it is common ground that the dispute brought before the Court of First Instance by Mr Pflugradt was not of a financial nature. Accordingly, it had only to rule on the legality of the contested measures, that is to say, to determine whether those adopting the measures had respected the legal obligations incumbent upon them, and was not required to rule on whether the measures taken by the ECB were within the terms of the employment contract at issue and its implementing rules.
31. It must be borne in mind that the employment relationship between the ECB and its staff is defined by the Conditions of Employment, adopted by the Governing Council, on a proposal from the Executive Board of the ECB, on the basis of Article 36.1 of the ESCB Statute. They provide, in Article 9(a), that ‘[e]mployment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction with these Conditions of Employment’. Article 10(a) of those conditions provides that ‘[e]mployment contracts between the ECB and its members of staff shall take the form of letters of appointment which shall be countersigned by members of staff’.
32. It must be found that those provisions are comparable to those of the Staff Regulations of the European Investment Bank (‘EIB’) regarding which the Court concluded that the system adopted for the employment relations between the EIB and its employees is contractual and is accordingly founded on the principle that individual contracts concluded between the EIB and each of its employees constitute the outcome of an agreement resting on mutual consent (Case 110/75 Mills v EIB [1976] 955, paragraph 22, and Case C-449/99 P EIB v Hautem [2001] ECR I‑6733, paragraph 93).
33. It must therefore be held that the employment relationship between the ECB and its staff is contractual rather than governed by public service regulations.
34. However, the contract at issue was concluded with a Community body, entrusted with public interest responsibilities and authorised to lay down, by regulation, provisions applicable to its staff. It follows that the consent of the parties to such a contract is necessarily circumscribed by all manner of obligations deriving from those particular responsibilities and incumbent upon both the management bodies of the ECB and its staff. It cannot be disputed that the Conditions of Employment are intended to meet those obligations and enable the ECB, in accordance with the third recital of the Conditions of Employment, to secure ‘the service of staff of the highest standard of independence, ability, efficiency and integrity …’.
35. On that point, according to Article 9(a) of the Conditions of Employment, the employment contracts are issued in conjunction with those conditions. Accordingly, by countersigning the letter of appointment provided for by Article 10(a) of the Conditions of Employment, staff agree to be bound by those conditions without being able to negotiate individually any of their terms. Consent is thus to an extent limited to acceptance of the rights and obligations laid down by the Conditions of Employment. It must be borne in mind that, as regards the interpretation of those rights and obligations, Article 9(c) of the Conditions of Employment provides that the ECB is to show due regard for the authoritative principles of the regulations, rules and case-law which apply to the staff of the EC institutions.
36. It is true that the employment contracts of members of the ECB staff may contain other terms agreed to by the member of staff concerned following discussion, relating, for example, to the essential features of the tasks entrusted to him. However, the existence of such terms does not in itself preclude the exercise by the management bodies of the ECB of their discretion to implement the measures entailed by the public interest obligations deriving from the particular responsibilities entrusted to the ECB. Those bodies may for instance be compelled, in order to meet such requirements of the service, and in particular to enable it to adapt to new needs, to take unilateral decisions or measures liable to alter inter alia the implementing conditions of employment contracts.
37. It follows that, in exercising that discretion, the management bodies of the ECB are not in any different position from that in which the management bodies of other Community bodies and institutions find themselves in their relations with their staff.
38. Against that background, the Court of First Instance, confining itself to considering the legality of the contested measures as it was bound to do, was right to see its role as the assessment of legality in the light of the principles applicable to all staff of other Community bodies and institutions. The Court of First Instance has, therefore, not disregarded the contractual nature of the position of the ECB staff members. Moreover, the Court of First Instance did not make an error of law in holding, in paragraph 59 of its judgment, that the alteration of the duties in question did not infringe an essential element of the employment contract.
39. In that light, contrary to Mr Pflugradt’s contentions, the Court of First Instance, in dismissing the arguments relied on in that connection, disregarded neither the ‘principle of institutional balance’ nor ‘the rules of evidence’, nor did it distort the arguments relied on by the applicant in that case.
40. The pleas relied upon relating to the contractual nature of the employment relationship between the ECB and its staff must, therefore, be rejected.
The pleas concerning the application of the principles governing the assignment of staff
41. Mr Pflugradt submits that, even while, mistakenly, in his view, applying the principles governing the assignment of staff to the staff of the ECB, in the light of the law on the Community civil service, the Court of First Instance breached those principles.
42. It should be recalled that the Court of Justice has held that the Community institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided such assignment is made in the interest of the service and conforms with the principle of assignment to an equivalent post (see Lux v Court of Auditors , cited above, paragraph 17; Case 19/87 Hecq v Commission [1988] ECR 1681, paragraph 6; and Ojha v Commission , cited above, paragraph 40).
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36 Second, as the defendant governments have themselves acknowledged, that Agreement, which is binding on both the Kingdom of Belgium and on the Grand Duchy of Luxembourg, contains, in Articles 2, 3 and 16, cargo-sharing arrangements which, in the absence of an authorisation granted under Article 5(1) of the Regulation, are contrary to that provision.
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44. However, according to the Court, the onus rests on a service provider which relies on the resources of entities or undertakings with which it is directly or indirectly linked, with a view to being admitted to participate in a tendering procedure, to establish that it actually has available to it the resources of those entities or undertakings which it does not itself own and which are necessary for the performance of the contract ( Holst Italia , paragraph 29).
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32 It is clear from the judgment in Case C-135/99 Elsen [2000] ECR I-10409, paragraphs 25 to 28, that, as regards taking account of child-raising periods for the purposes of old-age insurance, the fact that a person, like Mrs Kauer, worked in only one Member State and was subject to the legislation of that State at the time when her child was born, allows a sufficiently close link to be established between those child-raising periods and the periods of insurance completed by virtue of the pursuit of a gainful occupation in the State under consideration. It was indeed on account of completion of those latter periods that Mrs Kauer requested an Austrian institution to take account of periods spent in rearing her children during a break in her working career.
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25 In response to that submission, the Court observes that, pursuant to Article 13(2)(a) and (b) of Regulation No 1408/71, a person employed or self-employed in the territory of one Member State is subject to the social security legislation of that Member State even if he resides in the territory of another Member State.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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37. At the outset, it should be borne in mind that, according to settled case‑law, 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‑301/98 KVS International [2000] ECR I‑3583, paragraph 21; Case C‑53/05 Commission v Portugal [2006] ECR I‑6215, paragraph 20; and Case C‑298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-0000, paragraph 15).
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21 It should be recalled, at the outset, that according to the settled case-law of the Court, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, in particular, Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12, and C-223/98 Adidas [1999] ECR I-7081, paragraph 23).
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38 The only objections which the INPS and the Italian Government have put forward to justify refusal to allow aggregation of the insurance periods completed by Mrs Gottardo relate to a possible increase in their financial burden and administrative difficulties in liaising with the competent authorities of the Swiss Confederation. Those grounds cannot justify the Italian Republic's failure to comply with its Treaty obligations.
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34. The procedure under Article 88(2) EC is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. It follows that the Commission, when taking a decision in favour of an aid, may restrict itself to the preliminary examination under Article 88(3) EC only if it is able to satisfy itself after an initial examination that the aid is compatible with the common market. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure under Article 88(2) EC (see, inter alia, Cook v Commission , paragraph 29; Matra v Commission , paragraph 33; and Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 39).
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29 As the Court pointed out in its abovementioned judgment in Germany v Commission (at paragraph 13), the procedure under Article 93(2) is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. The Commission may restrict itself to the preliminary examination under Article 93(3) when taking a decision in favour of an aid only if it is able to satisfy itself after the preliminary examination that the aid is compatible with the Treaty. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to obtain all the requisite opinions and for that purpose to initiate the procedure provided for in Article 93(2).
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249IT IS ADVISABLE THEREFORE TO ASCERTAIN WHETHER THE DOMINANT UNDERTAKING HAS MADE USE OF THE OPPORTUNITIES ARISING OUT OF ITS DOMINANT POSITION IN SUCH A WAY AS TO REAP TRADING BENEFITS WHICH IT WOULD NOT HAVE REAPED IF THERE HAD BEEN NORMAL AND SUFFICIENTLY EFFECTIVE COMPETITION .
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31
Furthermore, the explanatory notes drawn up by the Commission as regards the CN and by the WCO as regards the HS are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see judgment in Data I/O, C‑297/13, EU:C:2014:331, paragraph 33 and case-law cited).
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33. It must be borne in mind that the Explanatory Notes drawn up by the Commission as regards the CN and by the World Customs Organisation as regards the HS may be an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see Case C‑423/10 Delphi Deutschland EU:C:2011:315, paragraph 24).
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14 On the other hand, it is appropriate for the Court to verify, of its own motion, whether an action to establish non-contractual liability may be brought before it where the alleged damage includes monetary compensatory amounts overcharged by a national administration and only the national courts have jurisdiction to entertain actions for the reimbursement of such amounts .
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47. Such a restriction is permissible only if it is justified by overriding reasons of public interest. It is further necessary, in such a case, that its application be appropriate to ensuring the attainment of the objective thus pursued and not go beyond what is necessary to attain it (Case C-250/95 Futura Participations and Singer [1997] ECR I-2471, paragraph 26; Case C-9/02 De Lasteyrie du Saillant [2004] ECR I-2409, paragraph 49; and Marks & Spencer , paragraph 35).
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26 Consequently, the imposition of such a condition, which specifically affects companies or firms having their seat in another Member State, is in principle prohibited by Article 52 of the Treaty. It could only be otherwise if the measure pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest. Even if that were so, it would still have to be of such a nature as to ensure achievement of the aim in question and not go beyond what was necessary for that purpose (see, to this effect, the judgments in Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37; in Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; and in Case C-415/93 Bosman [1995] ECR I-4921, paragraph 104).
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13. Ainsi, à la date d’expiration du délai fixé dans l’avis motivé, date à laquelle doit être appréciée l’existence d’un manquement (voir, en ce sens, arrêts du 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9), le rapport de synthèse requis en vertu de l’article 15, paragraphe 2, de la directive n’avait pas été présenté et les analyses ainsi que l’étude visées à l’article 5, paragraphe 1 de cette directive n’avaient pas été effectuées en ce qui concerne le district hydrographique pilote du Serchio et une portion des districts hydrographiques des Alpes orientales, et du Nord, du Centre et du Sud des Apennins.
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35. Second, it should also be noted that the right to deduct provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and in principle may not be limited. The right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, in particular, Case C-62/93 BP Soupergaz [1995] ECR I-1883, paragraph 18; Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 43; Case C-437/06 Securenta [2008] ECR I-1597, paragraph 24; and Case C-102/08 SALIX Grundstücks-Vermietungsgesellschaft [2009] ECR I-4629, paragraph 70). Any limitation of the right to deduct VAT affects the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for in the Sixth Directive (Case C-97/90 Lennartz [1991] ECR I-3795, paragraph 27, and BP Soupergaz , paragraph 18).
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18 The right of deduction provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and in principle may not be limited. The Court has consistently held (see, in particular, Case 50/87 Commission v France [1988] ECR 4797, paragraphs 15 to 17 and Case C-97/90 Lennartz v Finanzamt Muenchen III [1991] ECR I-3795, paragraph 27) that the right of deduction must be exercised immediately in respect of all the taxes charged on transactions relating to inputs. Any limitation on the right of deduction affects the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for in the directive.
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63 THE CENTRALIZATION OF BOTH SUPPLY AND DEMAND MAY BE CONSIDERED TO BE THE RESULT OF THE ITALIAN REGULATIONS AND WAS ENCOURAGED IN ADDITION BY THE FACT THAT, BECAUSE OF THE SIZE OF THE AMOUNTS PUT UP FOR TENDER, BUYERS FOUND THAT THERE WAS A STRONG INCENTIVE FOR THEM TO TURN TO EXPORTERS, WHOSE OUTPUT WAS ADEQUATE, WHO COULD GUARANTEE REGULAR BULK DELIVERIES AND ENTER INTO AGREEMENTS AT ATTRACTIVE PRICES, MAINLY BECAUSE THEY COULD GET UNUSUALLY SATISFACTORY FREIGHT RATES WHICH RAILWAY UNDERTAKINGS COULD NOT HAVE OFFERED FOR SMALLER AMOUNTS .
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29. As a preliminary point, it should be borne in mind that the objective of Directive 92/85, which was adopted on the basis of Article 118a EC, to which Article 153 TFEU corresponds, is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding (Case C‑460/06 Paquay [2007] ECR I‑8511, paragraph 27, and Case C‑232/09 Danosa [2010] ECR I‑11405, paragraph 58).
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27. In that regard, it is necessary to recall that the objective of Directive 92/85 is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.
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25. The fact remains that the expression ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001 is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places (Case C-523/10 Wintersteiger [2012] ECR I-0000, paragraph 19 and the case-law cited).
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25. In the case in the main proceedings, it must be pointed out, as did the national court, that, in accordance with settled case-law, the sale of shares does not in itself constitute an economic activity within the meaning of the Sixth Directive and does not therefore fall within its scope (see, inter alia, Case C-155/94 Wellcome Trust [1996] ECR I‑3013, paragraphs 33 to 37; EDM , paragraphs 57 to 62; and Kretztechnik , paragraph 19).
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33 As the Commission appositely pointed out, if such activities do not in themselves constitute an economic activity within the meaning of the Directive, the same must be true of activities consisting in the sale of such holdings.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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46
It must be stated, in that context, that, in the absence of harmonisation and in so far as uncertainty persists in the current state of scientific research, it is for the Member States to decide at which level they intend to ensure the protection of the health and life of persons (see, to that effect, judgments of 14 July 1983, Sandoz, 174/82, EU:C:1983:213, paragraph 16; of 23 September 2003, Commission v Denmark, C‑192/01, EU:C:2003:492, paragraph 42; and of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 85).
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16 AS THE COURT FOUND IN ITS JUDGMENT OF 17 DECEMBER 1981 IN CASE 272/80 ( FRANS-NEDERLANDSE MAATSCHAPPIJ VOOR BIOLOGISCHE PRODUCTEN ( 1981 ) ECR 3277 ), IN SO FAR AS THERE ARE UNCERTAINTIES AT THE PRESENT STATE OF SCIENTIFIC RESEARCH IT IS FOR THE MEMBER STATES , IN THE ABSENCE OF HARMONIZATION , TO DECIDE WHAT DEGREE OF PROTECTION OF THE HEALTH AND LIFE OF HUMANS THEY INTEND TO ASSURE , HAVING REGARD HOWEVER FOR THE REQUIREMENTS OF THE FREE MOVEMENT OF GOODS WITHIN THE COMMUNITY .
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50. Point 13 of the Guidelines on the method of setting fines therefore pursues the objective of adopting, as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgments in Team Relocations and Others v Commission , C‑444/11 P, EU:C:2013:464, paragraph 76; Guardian Industries and Guardian Europe v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 57; and LG Display and LG Display Taiwan v Commission , C‑227/14 P, EU:C:2015:258, paragraph 53).
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45. Such rights and benefits include all those relating to employment conditions, like the right of a worker employed under a full-time contract of indefinite duration who is entitled to part-time parental leave to a fixed-sum protective award in the event of the employer’s unilateral termination of a contract without compelling or sufficient reason. That award, the amount of which is linked to the salary related to that contract and the aim of which is to protect such a worker against dismissal on the grounds of an application for, or the taking of, parental leave, is paid to the worker by reason of his employment, which would have continued but for the unfair dismissal (see, by analogy, Case C‑33/89 Kowalska [1990] ECR I‑2591, paragraphs 10 and 11; Case C‑167/97 Seymour-Smith and Perez [1999] ECR I‑623, paragraphs 23 to 28; and Meerts , paragraph 44).
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10 In particular, compensation granted to a worker on termination of the employment relationship is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such termination ( see to that effect the judgment of 17 May 1990 in Case C-262/88 Barber, supra ).
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24. Next it should be recalled that such a reading of Article 11 of Directive 87/102 is consistent with the nature of the harmonisation brought about by that directive. Thus, under the 25th recital in the preamble to that directive, Member States should not be prevented by that directive from retaining or adopting more stringent measures to protect the consumer, and therefore prescribes minimal harmonisation in matters of consumer credit. Member States are therefore free to lay down rules which are more favourable to consumers.
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92. The Court has already had occasion to find, as regards a national provision concerning the granting of a residence permit to Turkish nationals that it is necessary to ensure that the Member States do not depart from the objective pursued by reversing measures which they have adopted in favour of the free movement of Turkish workers subsequent to the entry into force of Decision No 1/80 within their territory (Joined Cases C‑300/09 and C‑301/09 Toprak and Oguz [2010] ECR I-0000, paragraph 55).
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55. It is thus necessary to ensure that the Member States do not depart from the objective pursued by reversing measures which they have adopted in favour of the free movement of Turkish workers subsequent to the entry into force of Decision No 1/80 within their territory.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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39. In that regard, it must be pointed out that a woman is still linked to her employer by a contract of employment during maternity leave (see Gillespie and Others , paragraph 22; Thibault , paragraph 29, and Alabaster , paragraph 47). The way in which a female worker is paid during such leave does not affect that conclusion.
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22 The benefit paid during maternity leave is equivalent to a weekly payment calculated on the basis of the average pay received by the worker at the time when she was actually working and which was paid to her week by week, just like any other worker. The principle of non-discrimination therefore requires that a woman who is still linked to her employer by a contract of employment or by an employment relationship during maternity leave must, like any other worker, benefit from any pay rise, even if backdated, which is awarded between the beginning of the period covered by reference pay and the end of maternity leave. To deny such an increase to a woman on maternity leave would discriminate against her purely in her capacity as a worker since, had she not been pregnant, she would have received the pay rise.
Directive 76/207
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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10 The Court has consistently held that Article 177 of the Treaty provides the framework for close cooperation between national courts and the Court of Justice, based on a division of responsibilities between them. Within that framework, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the Court (see, in particular, the judgment in Case C-67/91 Asociación Española de Banca Privada [1992] ECR I-4785, at paragraph 25). Accordingly, where the national court' s request concerns the interpretation of a provision of Community law, the Court is bound to reply to it, unless it is being asked to rule on a purely hypothetical general problem without having available the information as to fact or law necessary to enable it to give a useful reply to the questions referred to it (Case C-83/91 Meilicke [1992] ECR I-4871).
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25 It must be borne in mind that the Court has consistently held that Article 177 of the Treaty lays down the framework for close cooperation between the national courts and the Court of Justice, based on a division of functions between them. Accordingly, it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to decide, having regard to the particular features of each case, as to both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court of Justice.
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103. Concernant le projet de doublement du tronçon 2, il y a lieu de rappeler que l’annexe II, point 13, de la directive 85/337 inclut dans le champ de l’évaluation prescrite à l’article 4, paragraphe 2, de celle-ci «[t]oute modification ou extension des projets figurant à l’annexe I ou à l’annexe II» et que la Cour a itérativement souligné que le champ d’application de cette directive est étendu et son objectif très large (voir arrêts du 16 septembre 2004, Commission/Espagne, C‑227/01, Rec. p. I‑8253, point 46, ainsi que Ecologistas en Acción-CODA, précité, point 28 et jurisprudence citée). La notion de modification de projet doit donc être entendue largement (voir arrêt du 24 octobre 1996, Kraaijeveld e.a., C‑72/95, Rec. p. I‑5403, point 39).
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En l’espèce, l’arrêt attaqué satisfait aux exigences de motivation incombant au Tribunal, dès lors que ce dernier a fourni,
aux points 439 à 452 dudit arrêt, un exposé détaillé des facteurs dont il a tenu compte en fixant le montant de l’amende (voir,
en ce sens, arrêt du 22 novembre 2012, E.ON Energie/Commission, C‑89/11 P, EU:C:2012:738, point 133). En effet, cette motivation
permet aux intéressés, et aux requérantes en particulier, de connaître les motifs sur lesquels le Tribunal s’est fondé et
à la Cour de disposer des éléments suffisants pour exercer son contrôle dans le cadre des présents pourvois.
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133. Accordingly, as regards the possible fine that could be imposed on E.ON Energie, pursuant to Article 23(2) of Regulation No 1/2003, in the event that the practices investigated are proved to have occurred, the fine of EUR 38 million, set down in the contested decision and confirmed by the General Court in the judgment under appeal and representing 0.14% of its annual turnover, could not be considered as excessive as regards the need to ensure its deterrent effect. It must be added, for the record, that by advancing, at paragraph 294 of the judgment under appeal, the three reasons mentioned at paragraph 127 above, the General Court gave sufficient reasons for its decision, adopted in the exercise of its unlimited jurisdiction, on the proportionality of the penalty imposed.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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40. In respect of shareholdings not covered by Directive 90/435, it is for the Member States to determine whether, and to what extent, economic double taxation or a series of charges to tax on distributed profits is to be avoided and, for that purpose, to establish, either unilaterally or through double taxation conventions concluded with other Member States, procedures intended to prevent or mitigate such economic double taxation or series of charges to tax. However, this does not of itself mean that the Member States are entitled to impose measures that contravene the freedoms of movement guaranteed by the Treaty (see, Test Claimants in Class IV of the ACT Group Litigation , paragraph 54; Amurta , paragraph 24; and Commission v Italy , cited above, paragraph 31).
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24. In that regard, it must be pointed out that, in respect of shareholdings which are not covered by Directive 90/435, it is for the Member States to determine whether, and to what extent, economic double taxation of distributed profits is to be avoided and, for that purpose, to establish, either unilaterally or through double taxation conventions concluded with other Member States, procedures intended to prevent or mitigate such economic double taxation. However, this does not of itself mean that the Member States are entitled to impose measures that contravene the freedoms of movement guaranteed by the EC Treaty ( Test Claimants in Class IV of the ACT Group Litigation , paragraph 54).
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52. In the light of those provisions – and of the wording of Article 13(a) of Regulation No 222/77, whereby the principal is required, amongst other things, to present the goods once again, intact, at the office of destination – the T 1 transit document under cover of which carriage of goods under the Community external transit system is effected undeniably plays an essential role in the proper functioning of that system. Thus a removal of that document, even if only temporary, is likely to undermine the very objectives of that system since, contrary to the requirements of Article 20 of Regulation No 222/77, it prevents the presentation of that document on any possible requisition by the customs service. Such removal also complicates the identification both of the goods which are subject to the transit procedure and of the customs regime applicable to them.
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21 It is true that, as the Italian Government contends, the Court in its aforesaid judgment in Commission v Italy (at paragraph 14) mentioned the possibility under Italian law for a person to make a declaration in his own name and on behalf of another person. It must be stated, however, that this judgment merely establishes that the fact that that possibility operates by way of a legal fiction contained in the second paragraph of Article 56 of the Code or by way of the legal concept of "indirect representation" cannot be regarded as the determining factor in assessing whether it is equivalent to a quantitative restriction on the formalities in question.
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14 HAVING DUE REGARD TO THOSE STATEMENTS THE COURT FINDS THAT THE INTERPRETATION OF THE PROVISIONS IN QUESTION IS COMPATIBLE WITH THEIR WORDING . IT FOLLOWS THAT SEVERAL POSSIBILITIES ARE OPEN TO THE OWNER OF GOODS FOR HAVING THE CUSTOMS DECLARATION MADE BY A THIRD PARTY WITHOUT BEING REQUIRED , AS THE COMMISSION MAINTAINS , TO HAVE RECOURSE TO AN AGENT . THE FACT THAT THIS POSSIBILITY OPERATES BY WAY OF THE LEGAL FICTION CONTAINED IN THE SECOND PARAGRAPH OF ARTICLE 56 OF THE CODE AND TREATS AS OWNER THE PERSON WHO PRESENTS THE GOODS OR MAKES THE DECLARATION IN HIS CAPACITY AS HAVING POSSESSION OF THEM OR BY WAY OF THE LEGAL CONCEPT OF ' ' INDIRECT AGENT ' ' , WHEREBY THE DECLARANT ACTS ON BEHALF OF THE OWNER BUT IN HIS OWN NAME AND IS JOINTLY LIABLE WITH THE OWNER RATHER THAN ACTING UNDER THE AUTHORITY CONFERRED ON HIM BY THE OWNER , CANNOT BE REGARDED AS DECISIVE IN DETERMINING WHETHER THE REQUIREMENTS IN QUESTION ARE EQUIVALENT TO A QUANTITATIVE RESTRICTION . THE FACT THAT THE OWNER CANNOT EMPLOY AN AGENT WHO NEITHER HAS POSSESSION OF THE GOODS NOR IS IN A POSITION TO PRESENT THEM TO THE CUSTOMS BUT THAT IN THIS CASE THE OWNER HAS TO HAVE RECOURSE TO A SELF-EMPLOYED OR EMPLOYEE CUSTOMS AGENT CANNOT CONSTITUTE A MEASURE HAVING EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION SINCE THE OTHER MEANS OF MAKING THE DECLARATION OFFER HIM AN EFFECTIVE AND REASONABLE CHOICE ALLOWING HIM , IF HE THINKS IT IS IN HIS INTEREST , TO AVOID HAVING TO HAVE RECOURSE TO A PROFESSIONAL CUSTOMS AGENT .
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32. The finding that there is a likelihood of confusion should not be subject to the condition that the overall impression produced by the composite sign be dominated by the part of it which is represented by the earlier mark.
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19. As regards the wording of the question, it must be borne in mind, at the outset, that the Court does not have jurisdiction to rule upon the compatibility of a national measure with EU law. Nor does the Court have jurisdiction to rule on the compatibility of State aid or of an aid scheme with the internal market, since that assessment falls within the exclusive competence of the European Commission, subject to review by the Court (judgment in Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraph 22 and the case-law cited).
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22. As regards the wording of the question itself and the questions raised by the national court, it is to be borne in mind, first, that the Court does not have jurisdiction to rule upon the compatibility of a national measure with European Union law (see, inter alia, Case C-118/08 Transportes Urbanos y Servicios Generales [2010] ECR I-0000, paragraph 23 and case-law cited). Nor does the Court have jurisdiction to rule on the compatibility of State aid or of an aid scheme with the common market, since that assessment falls within the exclusive competence of the European Commission, subject to review by the Court (see Case C‑237/04 Enirisorse [2006] ECR I-2843, paragraph 23). The Court also has no jurisdiction to give a ruling on the facts in an individual case or to apply the European Union law rules which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, paragraph 69 and case-law cited).
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76. Admittedly, it is true that that compensation entails certain financial consequences for air carriers. None the less, those consequences cannot be considered disproportionate to the aim of ensuring a high level of protection for air passengers.
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123. In the light of the foregoing, it must be found that the procedure in the General Court infringed the second paragraph of Article 47 of the Charter in that it did not comply with the requirement to adjudicate within a reasonable time, which constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, Case C‑352/98 P Bergaderm and Goupil v Commission EU:C:2000:361, paragraph 42).
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42 As regards Member State liability for damage caused to individuals, the Court has held that Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (Brasserie du Pêcheur and Factortame, paragraph 51).
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26. It should be noted that, in the case giving rise to the judgment in Weber (C‑1/07, EU:C:2008:640), at issue was a person who had driven a motor vehicle in Germany under the influence of drugs and who was subject, in addition to a fine, to a one-month suspension of his driving licence. His German driving licence had then been withdrawn for the same reasons. After the administrative decision to suspend his driving licence, but before that decision became final, and before the later decision withdrawing his licence, that person had obtained a Czech driving licence which the German authorities had refused to recognise.
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136 In the area of external relations, the Court has held that the Community's tasks and the objectives of the Treaty would be compromised if Member States were able to enter into international commitments containing rules capable of affecting rules adopted by the Community or of altering their scope (see Opinion 2/91, paragraph 11, and also, to that effect, the AETR judgment, paragraphs 21 and 22).
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21 UNDER ARTICLE 5, THE MEMBER STATES ARE REQUIRED ON THE ONE HAND TO TAKE ALL APPROPRIATE MEASURES TO ENSURE FULFILMENT OF THE OBLIGATIONS ARISING OUT OF THE TREATY OR RESULTING FROM ACTION TAKEN BY THE INSTITUTIONS AND, ON THE OTHER HAND, TO ABSTAIN FROM ANY MEASURE WHICH MIGHT JEOPARDIZE THE ATTAINMENT OF THE OBJECTIVES OF THE TREATY .
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38. Thus, according to settled case-law, derogation under those articles must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Servizi Ausiliari Dottori Commercialisti , cited above, paragraph 46 and the case-law cited), which excludes from being regarded as connected with the exercise of official authority, within the meaning of that derogation, functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision ( Thijssen , cited above, paragraph 22).
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34. Secondly, the Court has already held that the fact that a body is entrusted with some public interest tasks does not prevent the activities at issue from being regarded as economic activities (see, to that effect, Case C‑475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 21).
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21 Public service obligations may, of course, render the services provided by a given medical aid organisation less competitive than comparable services rendered by other operators not bound by such obligations, but that fact cannot prevent the activities in question from being regarded as economic activities.
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28. Parmi ces éléments de rattachement figure, notamment, l’existence d’un «établissement stable à partir duquel les opérations sont effectuées», en cause dans la présente procédure.
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26. In the case of gifts, it follows from that case-law that the measures prohibited by Article 56(1) EC as being restrictions on the movement of capital include those whose effect is to reduce the value of a gift by a resident of a Member State other than that in which the property concerned is located and which taxes the gift of that property (see, by analogy, van Hilten-van der Heijden , paragraph 44; Jäger , paragraph 31; Eckelkamp and Others , paragraph 44; Arens-Sikken , paragraph 37; and Block , paragraph 24).
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24. As regards inheritances, it is apparent from the case-law of the Court that the measures prohibited by Article 56(1) EC as being restrictions on the movement of capital include those the effect of which is to reduce the value of the inheritance of a resident of a State other than the Member State in which the assets concerned are situated and which taxes the inheritance of those assets ( van Hilten-van der Heijden , paragraph 44; Jäger , paragraph 31; Arens-Sikken , paragraph 37; and Eckelkamp , paragraph 44).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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74. In accordance with settled case-law, national measures restricting the free movement of capital may be justified inter alia by overriding reasons in the public interest, provided, first, that there is no harmonising measure of EU law providing for measures necessary to ensure the protection of those interests and, second, that they are appropriate to secure the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it (see, inter alia, Case C-112/05 Commission v Germany [2007] ECR I-8995, paragraphs 72 and 73; Case C-233/09 Dijkman and Dijkman-Lavaleije [2010] ECR I-6649, paragraph 49, and Case C-284/09 Commission v Germany , paragraph 74).
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72. It must therefore be concluded, in the light of the above observations, that the different treatment of dividends depending on whether they are distributed to resident or non-resident companies, as established by the German tax legislation, is liable to deter companies established in other Member States from making investments in Germany, and is also such as to constitute an obstacle to the raising of capital by resident companies from companies established in other Member States.
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48. L’exception d’irrecevabilité, prévue tant à l’article 91 du règlement de procédure de la Cour qu’à l’article 114 du règlement de procédure du Tribunal de première instance comme incident de procédure, permet, pour des raisons d’économie de procédure, de restreindre, dans une première phase, le débat et l’examen à la question de savoir si le recours en cause est recevable. Ainsi, cet incident de procédure permet d’éviter que les mémoires des parties ainsi que l’examen du juge portent sur le fond de l’affaire, bien que le recours soit irrecevable.
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39 By excluding in those circumstances, for the purpose of calculating the amount of pension due under the legislation whose conditions were fulfilled, the taking into account of periods completed under the legislation whose conditions were not yet fulfilled, the Court merely intended to ensure that, in conformity with the system under Regulation No 1408/71 which allowed different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights, each State paid the benefits corresponding to the periods completed under its legislation (McLachlan, cited above, paragraphs 29, 30 and 37).
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30 Mr McLachlan therefore has rights against the competent institutions of the United Kingdom in respect of the periods of insurance completed in that State and against the French institutions in respect of the periods completed in France.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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32
Moreover, it follows from the purpose of Directive 2003/96, under which the Member States are to tax energy products, that the directive does not seek to establish general exemptions (judgments of 1 December 2011, Systeme Helmholz, C‑79/10, EU:C:2011:797, paragraph 23, and of 21 December 2011, Haltergemeinschaft, C‑250/10, not published, EU:C:2011:862, paragraph 23).
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23. Secondly, it follows from the purpose of Directive 2003/96, under which the Member States are to tax energy products, that the directive does not seek to establish general exemptions (see, to that effect, Sea Fighter , paragraph 21).
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41. That question may, however, remain open if it is evident that, in any event, the exercise by the assignee of the right acquired is not closely connected with the insolvency proceedings.
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36 Further, in answer to the question, it should be borne in mind that it has also consistently been held that the principle that a Member State may incur liability for loss and damage caused to individuals as a result of breaches of Community law for which it can be held responsible is inherent in the system of the Treaty (see, in particular, Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 31; Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others v Germany [1996] ECR I-4845, paragraph 20; Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit International and Others v Bundesamt für Finanzen [1996] ECR I-5063, paragraph 47; and Case C-319/96 Brinkmann Tabakfabriken v Skatteministeriet [1998] ECR I-5255, paragraph 24).
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47 According to the consistent case-law of the Court, the principle of State liability for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty (see, in particular, Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-0000, paragraph 31, and Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-0000, paragraph 20).
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32. As the Advocate General stated in points 101 and 102 of his Opinion, the Commission has an obligation to consider on its own initiative all the information available, since in an anti-dumping investigation, it does not act as an arbitrator whose remit is limited to making an award solely on the basis of the information and the evidence provided by the parties to the investigation. In that connection, it should be noted that Article 6(3) and (4) of the basic regulation authorises the Commission to request Member States to supply information to it and to carry out all necessary checks and inspections.
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38. In order to examine whether the measure at issue in the main proceedings goes beyond what is necessary for achieving its objective and unduly prejudices the interests of workers who reach the age of 67, that measure must be viewed against its legislative background and account must be taken both of the hardship that it may cause to the persons concerned and of the benefits derived from it by society in general and by the individuals who make up society ( Rosenbladt , paragraph 73).
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73. In order to examine whether the measure at issue in the main proceedings goes beyond what is necessary for achieving its objective and unduly prejudices the interests of workers who reach the age of 65, when they may obtain liquidation of their pension rights, that measure must be viewed against its legislative background and account must be taken both of the hardship it may cause to the persons concerned and of the benefits derived from it by society in general and the individuals who make up society.
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43
The referring court takes the view, in essence, that, if the first supplies were regarded as having to be classified as taxable transactions, a risk of double taxation could arise. However, as the Commission has submitted in its written observations, that risk cannot be regarded as capable of justifying exemption of those transactions, given that double taxation can be avoided and fiscal neutrality can be ensured if the VAT Directive is applied correctly.
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23 The exclusion of persons in minor employment from social insurance, which is laid down by the SGB, is intended to meet a social demand for minor employment which the German Government considered it should respond to in the context of its social and employment policy (see Case C-317/93 Nolte v Landesversicherungsanstalt Hannover [1995] ECR I-4625, paragraph 31; and Case C-444/93 Megner and Scheffel v Innungskrankenkasse Rheinhessen-Pfalz [1995] ECR I-4741, paragraph 27).
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31 The German Government further explains that there is a social demand for minor employment, that it considers that it should respond to that demand in the context of its social policy by fostering the existence and supply of such employment and that the only means of doing this within the structural framework of the German social security scheme is to exclude minor employment from compulsory insurance.
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47. It will also be for the referring court, when reviewing whether there has been compliance with the principle of proportionality, to determine whether the prohibition on leaving the country is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it (see, to that effect, Jipa, paragraph 29). In that respect, even if the impossibility of recovering the debt at issue were to constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, it will be for the referring court to determine, inter alia, whether, by depriving Mr Aladzhov of the possibility of pursuing part of his professional activity abroad and thereby depriving him of part of his income, the measure of prohibition at issue is both appropriate to ensure the recovery of the tax sought and necessary for that purpose. It will be also be for the referring court to determine that there were no other measures other than that of a prohibition on leaving the territory which would have been equally effective to obtain that recovery, but would not have encroached on freedom of movement.
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35. Il importe d’ajouter que, selon une jurisprudence constante de la Cour, l’existence réduite dans un État membre déterminé d’une certaine activité visée par une directive ne saurait libérer cet État de son obligation de prendre des mesures législatives ou réglementaires afin d’assurer une transposition adéquate de l’ensemble des dispositions de cette directive (voir, en ce sens, arrêts du 16 novembre 2000, Commission/Grèce, C‑214/98, Rec. p. I‑9601, point 22, et du 30 mai 2002, Commission/Royaume-Uni, C‑441/00, Rec. p. I‑4699, point 15).
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22 In order to decide whether this complaint of the Commission is well founded, it must be recalled that, according to the Court's case-law, the fact that an activity referred to in a directive does not exist in a particular Member State cannot release that State from its obligation to adopt laws or regulations in order to ensure that all the provisions of the directive are properly transposed (see, to that effect, Case C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 22).
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60. In those circumstances, as noted by the Advocate General in point 79 of his Opinion, the burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them, irrespective of who they are.
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99. It must be noted that that argument, which was raised and discussed for the first time at the hearing before the Court, does not appear either in the order for reference or in the written observations submitted by the parties concerned. Accordingly, in the absence of more detailed and specific information on that point, the Court finds that the documents submitted to it do not indicate with sufficient clarity that that matter may be relevant for the purpose of resolving the dispute in the main proceedings and, therefore, of any assistance to the national court, which, as the court that must resolve the dispute, is best placed to determine the relevance of the questions referred to the Court in the light of the particular features of the case before it (see, to that effect, judgment in Flughafen Köln/Bonn , C‑226/07, EU:C:2008:429, paragraphs 37 and 38)
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37. In that regard, it must be stated that, by its question, the national court asked the Court of Justice only as to the interpretation of Article 14(1)(a) of Directive 2003/96 and that the abovementioned matters of fact and law, which were raised and discussed for the first time at the hearing before the Court, are not referred to either in the order for reference or in the written observations lodged by the interested parties. Moreover, the parties to the main proceedings confirmed, in response to a question put by the Court, that that aspect of the dispute was not addressed at any stage of the main proceedings.
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21NEVERTHELESS IT IS POSSIBLE FOR SUCH A PRACTICE TO BE FOLLOWED BY THE PROPRIETOR OF THE MARKS AS PART OF A SYSTEM OF MARKETING INTENDED TO PARTITION THE MARKETS ARTIFICIALLY .
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28. It is clear from the Court’s case-law that the principle of equal treatment, of which the prohibition on any discrimination on grounds of nationality in the first paragraph of Article 12 EC is a specific instance, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, inter alia, Case C-3/88 Commission v Italy [1989] ECR 4035, paragraph 8, and Case C-388/01 Commission v Italy [2003] ECR I-721, paragraph 13).
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8 According to the Court' s case-law the principle of equal treatment, of which Articles 52 and 59 of the Treaty embody specific instances, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result ( see, in particular, the judgment of 29 October 1980 in Case 22/80 Boussac v Gerstenmeier (( 1980 )) ECR 3427 ).
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71. For the condition as to ‘deliberate’ action in Article 12(1)(a) of the directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing.
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67. As regards the second part of this limb of the ground of appeal, which relates to the statement of reasons for the refusal to grant the application for production of documents, it should be observed that it is for the Community judicature to decide, in the light of the circumstances of the case and in accordance with the provisions of the Rules of Procedure on measures of inquiry, whether it is necessary for a document to be produced. With regard to the Court of First Instance, it follows from Article 49 read in conjunction with Article 65(b) of its Rules of Procedure that a request for production of documents is a measure of inquiry which the Court may order at any stage of the proceedings (see Case C-286/95 P Commission v ICI [2000] ECR I-2341, paragraphs 49 and 50).
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50 As regards the Court of First Instance, it follows from Article 49 read in conjunction with Article 65(b) of its Rules of Procedure that a request for production of documents is a measure of inquiry which the Court may order at any stage of the proceedings.
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31. In that respect, it is admittedly true that the Member States have a legitimate interest in taking appropriate steps to protect their financial interests and that the prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112 (see, to that effect, Sosnowska , paragraph 22 and the case-law cited, and Joined Cases C-80/11 and C-142/11 Mahagében and David [2012] ECR, paragraph 41).
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70. With regard to Article 5(1) of Directive 76/207, which prohibits any discrimination on grounds of sex with regard to working conditions, including the conditions governing dismissal, the Court has already held it to be sufficiently precise to be relied upon by an individual as against the State and applied by a national court in order to prevent the application of any national provision which is inconsistent with Article 5(1) (see Case 152/84 Marshall [1986] ECR 723, paragraphs 52 and 56 ( "Marshall I " ), and Seymour-Smith and Perez , paragraph 40).
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52 FINALLY , WITH REGARD TO THE QUESTION WHETHER THE PROVISION CONTAINED IN ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 , WHICH IMPLEMENTS THE PRINCIPLE OF EQUALITY OF TREATMENT SET OUT IN ARTICLE 2 ( 1 ) OF THE DIRECTIVE , MAY BE CONSIDERED , AS FAR AS ITS CONTENTS ARE CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE TO BE RELIED UPON BY AN INDIVIDUAL AS AGAINST THE STATE , IT MUST BE STATED THAT THE PROVISION , TAKEN BY ITSELF , PROHIBITS ANY DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , IN A GENERAL MANNER AND IN UNEQUIVOCAL TERMS . THE PROVISION IS THEREFORE SUFFICIENTLY PRECISE TO BE RELIED ON BY AN INDIVIDUAL AND TO BE APPLIED BY THE NATIONAL COURTS .
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Certes, l’obligation de motivation qui incombe au Tribunal n’impose pas à celui-ci de fournir un exposé qui suivrait, de manière
exhaustive et un par un, tous les raisonnements articulés par les parties au litige (voir en ce sens, notamment, arrêts FIAMM
e.a./Conseil et Commission, C‑120/06 P et C-121/06 P, EU:C:2008:476, point 96, ainsi que Italie/Commission, C-385/13 P, EU:C:2014:2350,
point 87).
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40. Thus, while this term is modelled on certain elements of national law, it remains a Community concept which, contrary to the submissions of Bromley LBC and the United Kingdom Government, falls exclusively within Community law. According to settled case-law, the terms used in a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope are normally to be given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question (see, to this effect, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I-6917, paragraph 43; and Case C-201/02 Wells [2004] ECR I-723, paragraph 37).
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37. The question whether the decision determining new conditions and the decision approving matters reserved by the new conditions constitute development consent within the meaning of Article 1(2) of Directive 85/337 is a question concerning the interpretation of Community law. The Court has consistently held that, in light of both the principle that Community law should be applied uniformly and the principle of equality, the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope is normally to be given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question (Case 327/82 Ekro [1984] ECR 107, paragraph 11, and Linster , cited above, paragraph 43).
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66. La Cour ayant constaté que la République italienne ne s’est pas conformée à son arrêt Commission/Italie (C‑297/08, EU:C:2010:115), elle peut, en application de l’article 260, paragraphe 2, deuxième alinéa, TFUE, infliger à cet État membre le paiement d’une somme forfaitaire et/ou d’une astreinte (voir arrêt Commission/Grèce, C‑378/13, EU:C:2014:2405, point 33 et jurisprudence citée).
Sur l’astreinte
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8. Selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 11 octobre 2001, Commission/Autriche, C‑110/00, Rec. p. I‑7545, point 13, et du 18 juin 2009, Commission/Royaume-Uni, C‑417/08, point 6).
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13 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 in the Member State as it stood at the end of the period laid down in the reasoned opinion, and that the Court may not 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-266/99 Commission v France [2001] ECR I-1981, paragraph 38).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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31
In particular, national courts ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 28 and the case-law cited). For this purpose, proceedings may be commenced before national courts requiring those courts to interpret and apply the concept of ‘State aid’, contained in Article 107(1) TFEU, in order to determine whether a State measure introduced without observance of the preliminary examination procedure provided for in Article 108(3) TFEU ought or ought not to have been subject to this procedure (see, to that effect, judgment of 18 July 2007, Lucchini, C‑119/05, EU:C:2007:434, paragraph 50 and the case-law cited).
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50. Proceedings concerning State aid may be commenced before national courts requiring those courts to interpret and apply the concept of aid contained in Article 87(1) EC, in particular in order to determine whether State aid introduced without observance of the preliminary examination procedure provided for in Article 88(3) EC ought to have been subject to this procedure (Case 78/76 Steinike & Weinlig [1977] ECR 595, paragraph 14, and Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon [1991] ECR I-5505, paragraph 10). Similarly, in order to be able to determine whether a State measure established without taking account of the preliminary examination procedure laid down by Article 6 of the third code should or should not be made subject to that procedure, a national court may have occasion to interpret the concept of aid referred to in Article 4(c) of the ECSC Treaty and Article 1 of the third code (see, by analogy, Case C-390/98 Banks [2001] ECR I-6117, paragraph 71).
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66. Against that background, a condition such as at issue must be regarded as compatible with Community law despite its restrictive effects on trade if it is shown that it is necessary and proportionate and capable of upholding the reputation of the PDO "Prosciutto di Parma" (see, to that effect, Belgium v Spain , paragraphs 58 and 59).
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47. The Court has thus held that investments covered by the UCITS Directive and subject in that context to specific State supervision, on the one hand, and funds which, without being collective investment undertakings within the meaning of that directive, display characteristics identical to theirs and thus carry out the same transactions or, at least, display features that are sufficiently comparable for them to be in competition with such undertakings, on the other, must be regarded as exempt special investment funds within the meaning of that provision (judgments in Wheels Common Investment Fund Trustees and Others , C‑424/11, EU:C:2013:144, paragraphs 23 and 24, and ATP PensionService , C‑464/12, EU:C:2014:139, paragraphs 46 and 47).
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24. Furthermore, funds which, without being collective investment undertakings within the meaning of the UCITS Directive, display characteristics identical to theirs and thus carry out the same transactions or, at least, display features that are sufficiently comparable for them to be in competition with such undertakings must also be regarded as special investment funds (see, to this effect, Abbey National , paragraphs 53 to 56, and Claverhouse , paragraphs 48 to 51).
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95. As to the claim that the Court of First Instance should have joined an appraisal of the objection of inadmissibility to the substance of the case, it must be stated that, unlike the position in the judgments cited by the appellants, an appraisal as to whether the objection of inadmissibility raised before the Court of First Instance was well founded was not dependent, in the circumstances of this case, on the appraisal to be made of the substantive pleas put forward by the appellants.
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61. En effet, un État membre ne saurait invoquer l’existence d’un avantage concédé de manière unilatérale par un autre État membre, en l’occurrence l’État membre dans lequel M. Imfeld travaille et perçoit l’intégralité de ses revenus, afin d’échapper aux obligations qui lui incombent en vertu du traité, notamment au titre des dispositions de celui-ci relatives à la liberté d’établissement (voir en ce sens, notamment, arrêts du 8 novembre 2007, Amurta, C‑379/05, Rec. p. I‑9569, point 78, ainsi que du 11 septembre 2008, Eckelkamp e.a., C‑11/07, Rec. p. I‑6845, point 69, et Arens-Sikken, C‑43/07, Rec. p. I‑6887, point 66).
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66. A Member State cannot rely on the existence of a tax advantage granted unilaterally by another Member State – in the present case, the Member State in which the person concerned was residing at the time of his death – in order to escape its obligations under the Treaty and, in particular, under the Treaty provisions relating to the free movement of capital (see, to that effect, Case C‑379/05 Amurta [2007] ECR I‑0000, paragraph 78).
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27. It is to be noted at this stage that the business expenses in question are directly linked to the activity that generated the taxable income in Germany, so that residents and non-residents are placed in a comparable situation in that respect.
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26
Moreover, the referring court questions whether a stipulation such as that at issue in the main proceedings, by restricting the possibility for small- and medium-sized enterprises (SMEs) to participate in the performance of works in the context of a public contract, is not capable of infringing the principle of the opening of public contracts to undistorted competition, since that opening concerns all enterprises, whatever their size, it seeming that particular attention should be paid in that regard to SMEs. That court refers, in that regard, to the Court’s case-law, in particular to the judgment of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:646, paragraph 33).
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33. Therefore, it must be held that Directive 2004/18 permits the combining of the capacities of more than one economic operator for the purpose of satisfying the minimum capacity requirements set by the contracting authority, provided that the candidate or tenderer relying on the capacities of one or more other entities proves to that authority that it will actually have at its disposal the resources of those entities necessary for the execution of the contract.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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28
The finding in paragraph 26 of this judgment is also supported by the case-law of the Court of Justice under the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, whose continuity, as is apparent from recital 34 of Regulation No 1215/2012, should be ensured as regards the interpretation of Article 66(1) of that regulation, according to which the only necessary and sufficient condition for the scheme of that regulation to be applicable to litigation relating to legal relationships created before its entry into force is that the judicial proceedings should have been instituted subsequently to that date (see, to that effect, judgment of 13 November 1979, Sanicentral, 25/79, EU:C:1979:255, paragraph 6).
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6 BY ITS NATURE A CLAUSE IN WRITING CONFERRING JURISDICTION AND OCCURRING IN A CONTRACT OF EMPLOYMENT IS A CHOICE OF JURISDICTION ; SUCH A CHOICE HAS NO LEGAL EFFECT FOR SO LONG AS NO JUDICIAL PROCEEDINGS HAVE BEEN COMMENCED AND ONLY BECOMES OF CONSEQUENCE AT THE DATE WHEN JUDICIAL PROCEEDINGS ARE SET IN MOTION .
THAT IS THEREFORE THE RELEVANT DATE FOR THE PURPOSES OF AN APPRECIATION OF THE SCOPE OF SUCH A CLAUSE IN RELATION TO THE LEGAL RULES APPLYING AT THAT TIME .
THE JUDICIAL PROCEEDINGS WERE INSTITUTED ON 27 NOVEMBER 1973 AND THE CONVENTION THUS APPLIES IN PURSUANCE OF ARTICLE 54 THEREOF .
THE EFFECT OF THAT ARTICLE INDEED IS THAT THE ONLY ESSENTIAL FOR THE RULES OF THE CONVENTION TO BE APPLICABLE TO LITIGATION RELATING TO LEGAL RELATIONSHIPS CREATED BEFORE THE DATE OF THE COMING INTO FORCE OF THE CONVENTION IS THAT THE JUDICIAL PROCEEDINGS SHOULD HAVE BEEN INSTITUTED SUBSEQUENTLY TO THAT DATE , WHICH IS THE POSITION IN THE PRESENT INSTANCE .
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33. However, Directive 89/665 lays down only the minimum conditions to be satisfied by the review procedures established in domestic law to ensure compliance with the requirements of EU law concerning public procurement (see, inter alia, Case C-327/00 Santex [2003] ECR I-1877, paragraph 47, and Case C-315/01 GAT [2003] ECR I-6351, paragraph 45). If there is no specific provision governing the matter, it is therefore for the domestic law of each Member State to determine the measures necessary to ensure that the review procedures effectively award damages to persons harmed by an infringement of the law on public contracts (see, by analogy, GAT , paragraph 46).
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63. Under Article 52 of the EC Treaty (now, after amendment, Article 43 EC), a Member State seised of an application for authorisation to practise a profession access to which, under national law, depends on possession of a diploma or professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to practise that profession in another Member State, by comparing the specialised knowledge and abilities certified by those diplomas with the knowledge and qualifications required by the national rules (see Case C-340/89 Vlassopoulou [1991] ECR I-2357, paragraph 16; Case C-232/99 Commission v Spain [2002] ECR I-4235, paragraph 21, and Case C-313/01 Morgenbesser [2003] ECR I-0000, paragraph 57).
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16 Consequently, a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialized knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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7 It should be recalled at the outset that, by a line of authority now well-established by the Court, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts, and that, in applying national law, the national court is therefore required to interpret it in the light of the wording and 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 (see Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26, and Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8).
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8 In order to reply to that question, it should be observed that, as the Court pointed out in 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, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts . It follows that, in applying 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, as 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 .
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22. Il importe de rappeler que, en principe, une règle de droit nouvelle s’applique à compter de l’entrée en vigueur de l’acte qui l’instaure. Si elle ne s’applique pas aux situations juridiques nées et définitivement acquises sous l’empire de la loi ancienne, elle s’applique aux effets futurs de celles-ci, ainsi qu’aux situations juridiques nouvelles (voir, en ce sens, arrêt du 6 juillet 2010, Monsanto Technology, C‑428/08, Rec. p. I‑6765, point 66). Il n’en va autrement, et sous réserve du principe de non-rétroactivité des actes juridiques, que si la règle nouvelle est accompagnée de dispositions particulières qui déterminent spécialement ses conditions d’application dans le temps (arrêt du 16 décembre 2010, Stichting Natuur en Milieu e.a., C‑266/09, Rec. p. I‑13119, point 32).
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25. According to settled case-law, 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-301/98 KVS International [2000] ECR I‑3583, paragraph 21, and Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 50).
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21 It should be recalled, at the outset, that according to the settled case-law of the Court, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, in particular, Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12, and C-223/98 Adidas [1999] ECR I-7081, paragraph 23).
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109. En ce qui concerne, enfin, la responsabilité de l’employeur, il ressort de la jurisprudence de la Cour que le fait que la Communauté autonome puisse être tenue pour responsable des comportements des registradores-liquidadores lorsqu’ils agissent en tant que délégués de l’autorité publique ne suffit pas à établir l’existence de liens de subordination (voir arrêt Ayuntamiento de Sevilla, précité, point 14).
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48. That analysis and that of the terms ‘supply of goods’ and ‘supply of services’ show that those terms, which define taxable transactions under the Sixth Directive, are all objective in nature and apply without regard to the purpose or results of the transactions concerned (see, to that effect, Joined Cases C-354/03, C-355/03 and C-484/03 Optigen and Others [2006] ECR I-0000, paragraph 44).
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44. In fact, that analysis and that of the definitions of ‘supply of goods’ and ‘taxable person acting as such’ show that those terms, which define taxable transactions under the Sixth Directive, are all objective in nature and apply without regard to the purpose or results of the transactions concerned.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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15 As the Court held in the judgment in Case 189/87 Kalfelis v Schroeder [1988] ECR 5565, paragraphs 15 and 16, the concept of "matters relating to tort, delict or quasi-delict" serves as a criterion for defining the scope of one of the rules concerning the special jurisdictions available to the plaintiff. Regard being had to the objectives and general scheme of the Convention, it is important that, in order to ensure as far as possible the equality and uniformity of the rights and obligations arising out of the Convention for the Contracting States and the persons concerned, that concept should not be interpreted as a simple reference to the national law of one or other of the States concerned. Accordingly, the concept of "matters relating to tort, delict or quasi-delict" must be regarded as an independent concept which is to be interpreted, for the application of the Convention, principally by reference to the scheme and objectives of the Convention in order to ensure that the latter is given full effect.
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15 With respect to the first part of the question, it must be observed that the concept of "matters relating to tort, delict or quasi-delict" serves as a criterion for defining the scope of one of the rules concerning the special jurisdictions available to the plaintiff . As the Court held with respect to the expression "matters relating to a contract" used in Article 5 ( 1 ) ( see the judgments of 22 March 1983 in Case 34/82 Peters v ZNAV (( 1983 )) ECR 987, and of 8 March 1988 in Case 9/87 SPRL Arcado and SA Haviland (( 1988 )) ECR 1539 ), having regard to the objectives and general scheme of the Convention, it is important that, in order to ensure as far as possible the equality and uniformity of the rights and obligations arising out of the Convention for the Contracting States and the persons concerned, that concept should not be interpreted simply as referring to the national law of one or other of the States concerned .
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49. Therefore, the legal basis for the repayment of amounts wrongly paid by the European Union under Regulation No 1265/2001 is in the provisions of Regulation No 1258/1999 on the financing of the common agricultural policy (see, by analogy, as regards the recovery of subsidies wrongly paid under the Structural Funds, Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others , paragraph 39).
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28 It follows from the grounds of the judgment in Skanavi and Chryssanthakopoulos, paragraphs 36 to 39, that the justification for the restriction imposed on the power of the Member States to provide for criminal penalties in the event of breach of the obligation to exchange driving licences is the free movement of persons established by the Treaty.
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37 Treating a person who has failed to have a licence exchanged as if he were a person driving without a licence, thereby causing criminal penalties, even if only financial in nature, such as those provided for in the national legislation in question in this case, to be applied, would also be disproportionate to the gravity of that infringement in view of the ensuing consequences.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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53. In this connection, the Court has already held that Member States may establish the criteria and/or thresholds necessary to determine which of the projects covered by Annex II to Directive 85/337, in its original version, are to be subject to an assessment. However, the discretion thus granted to the Member States is limited by the obligation, set out in Article 2(1) of that directive, to subject projects likely to have significant effects on the environment, particularly by virtue of their nature, size or location, to an assessment with regard to their effects (see, to that effect, Kraaijeveld and Others , paragraph 50, and judgment of 16 March 2006 in Case C‑332/04 Commission v Spain , not published in the ECR, paragraph 76). Accordingly, when establishing those thresholds and/or criteria, Member States must take account not only of the size of projects, but also of their nature and location (see, to that effect, Case C‑392/96 Commission v Ireland [1999] ECR I-5901, paragraph 65, and Commission v Spain , paragraph 76).
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65 Thus, a Member State which established criteria or thresholds taking account only of the size of projects, without also taking their nature and location into consideration, would exceed the limits of its discretion under Articles 2(1) and 4(2) of the Directive.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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74. Finally, although the Court stated in the judgment in Miles and Others (EU:C:2011:388, paragraphs 43 to 45) that it did not have jurisdiction to answer the question raised by the Complaints Board of the European Schools because the latter does not constitute a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU, it also accepted the possibility, or indeed the obligation, which that Complaints Board has to refer a question to the Court in the course of a dispute between teachers seconded to a European school and that school, in which it is appropriate to apply the general principles of EU law, but that it was for the Member States to reform the system of judicial protection established by the Convention defining the Statute of the European Schools currently in force.
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44. The applicants in the main proceedings and the Commission, however, consider that the possibility, or indeed the obligation, which the Complaints Board has of referring a question to the Court of Justice in the course of such a dispute is vital to ensure that those principles are applied uniformly and that the rights which seconded teachers derive from them are effectively protected.
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55
It is appropriate therefore to distinguish that situation from one in which a purely quantitative threshold would lead, in practice, to an entire class of plans or programmes being exempted in advance from the requirement of environmental assessment under Directive 2001/42, even if those plans or programmes are likely to have significant effects on the environment (see, to that effect, judgment of 22 September 2011, Valčiukienė and Others, C‑295/10, EU:C:2011:608, paragraph 47 and the case-law cited).
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8 The Court of Justice held in its judgment in Case 312/85 Villa Banfi v Regione Toscana [1986] ECR 4039, paragraph 11, that Article 3(1) of Directive 72/159 does not permit Member States, when laying down the criteria to be fulfilled by a legal person in order to be regarded as a farmer practising farming as his main occupation, to exclude certain types of legal person from the scope of the directive solely by reason of their legal form.
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11 CONSEQUENTLY , THE ANSWER TO BE GIVEN IS THAT ARTICLE 3 ( 1 ) OF COUNCIL DIRECTIVE 72/159/EEC MUST BE INTERPRETED AS MEANING THAT MEMBER STATES , WHEN LAYING DOWN THE CRITERIA TO BE FULFILLED BY A PERSON OTHER THAN A NATURAL PERSON IN ORDER TO BE REGARDED AS A FARMER PRACTISING FARMING AS HIS MAIN OCCUPATION , ARE NOT PERMITTED TO EXCLUDE CERTAIN TYPES OF LEGAL PERSON FROM THE SCOPE OF THE DIRECTIVE SOLELY BY REASON OF THEIR LEGAL FORM .
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9. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9, et du 16 juillet 2009, Commission/Belgique, C‑574/08, point 9).
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53. That objective is to allow a national of a Member State to set up a secondary establishment in another Member State to carry on his activities there and thus assist economic and social interpenetration within the Community in the sphere of activities as self-employed persons (see Case 2/74 Reyners [1974] ECR 631, paragraph 21). To that end, freedom of establishment is intended to allow a Community national to participate, on a stable and continuing basis, in the economic life of a Member State other than his State of origin and to profit therefrom (Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 25).
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25 The concept of establishment within the meaning of the Treaty is therefore a very broad one, allowing a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the Community in the sphere of activities as self-employed persons (see, to this effect, Case 2/74 Reyners v Belgium [1974] ECR 631, paragraph 21).
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44. In addition, that request must relate to all sections of the tender which are imprecise or which do not meet the technical requirements of the tender specifications, without the contracting authority being entitled to reject a tender because of the lack of clarity of a part thereof which was not covered in that request.
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93. Legislation is not limited to what is strictly necessary where it authorises, on a generalised basis, storage of all the personal data of all the persons whose data has been transferred from the European Union to the United States without any differentiation, limitation or exception being made in the light of the objective pursued and without an objective criterion being laid down by which to determine the limits of the access of the public authorities to the data, and of its subsequent use, for purposes which are specific, strictly restricted and capable of justifying the interference which both access to that data and its use entail (see, to this effect, concerning Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54), judgment in Digital Rights Ireland and Others , C‑293/12 and C‑594/12, EU:C:2014:238, paragraphs 57 to 61).
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58. Directive 2006/24 affects, in a comprehensive manner, all persons using electronic communications services, but without the persons whose data are retained being, even indirectly, in a situation which is liable to give rise to criminal prosecutions. It therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Furthermore, it does not provide for any exception, with the result that it applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy.
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34. Toutefois, il est de jurisprudence constante qu’un texte de droit dérivé de l’Union doit être interprété, dans la mesure du possible, dans le sens de sa conformité avec les dispositions des traités et les principes généraux du droit de l’Union (voir arrêts du 21 mars 1991, Rauh, C‑314/89, Rec. p. I‑1647, point 17; du 10 juillet 2008, Bertelsmann et Sony Corporation of America/Impala, C‑413/06 P, Rec. p. I‑4951, point 174 et jurisprudence citée, ainsi que Orfey Balgaria, précité, point 32).
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57. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned (see to this effect, in particular, Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 28 to 33, WWF and Others , cited above, paragraphs 69 and 71, Case C-194/94 CIA Security International [1996] ECR I-2201, paragraphs 40 to 55, Case C-201/94 Smith & Nephew and Primecrown [1996] ECR I-5819, paragraphs 33 to 39, and Case C-443/98 Unilever [2000] ECR I-7535, paragraphs 45 to 52).
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41 The notification and the period of suspension therefore afford the Commission and the other Member States an opportunity to examine whether the draft regulations in question create obstacles to trade contrary to the EC Treaty or obstacles which are to be avoided through the adoption of common or harmonized measures and also to propose amendments to the national measures envisaged. This procedure also enables the Commission to propose or adopt Community rules regulating the matter dealt with by the envisaged measure.
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30. A contract of employment such as that at issue in the main proceedings lays down neither weekly working time nor the organisation of working time, which are dependent on quantitative requirements in terms of work to be performed, determined on a case-by-case basis by agreement between the parties. That being the case, the contract at issue affects the pursuit of occupational activity by the workers concerned by scheduling their working time according to need.
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105. À cet égard, il importe de rappeler qu’une telle dénaturation doit apparaître de façon manifeste des pièces du dossier, sans qu’il soit nécessaire de procéder à une nouvelle appréciation des faits et des preuves (arrêts du 22 décembre 2008, British Aggregates/Commission, C‑487/06 P, Rec. p. I‑10515, point 98, et du 10 février 2011, Activision Blizzard Germany/Commission, C‑260/09 P, non encore publié au Recueil, point 53 ainsi que jurisprudence citée).
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98. It should, moreover, be pointed out that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, General Motors v Commission , paragraph 54, and Evonik Degussa v Commission and Council , paragraph 74).
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21. Il convient, en premier lieu, de rappeler qu’il résulte de la jurisprudence constante de la Cour que, dans l’intérêt de la sécurité juridique et de la facilité des contrôles, le critère décisif pour le classement tarifaire des marchandises doit être recherché, d’une manière générale, dans leurs caractéristiques et propriétés objectives, telles que définies par le libellé de la position de la NC et des notes de section ou de chapitre (voir arrêt JVC France, C‑312/07, EU:C:2008:324, point 33 et jurisprudence citée).
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20. In that context, without it being necessary first to examine the validity of Decision 1999/93, it should be recalled that, according to settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. It follows that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties (Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20; Case C-192/94 El Corte Inglés [1996] ECR I-1281, paragraphs 16 and 17; Case C-201/02 Wells [2004] ECR I-723, paragraph 56; and Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraphs 108 and 109).
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48 WITH REGARD TO THE ARGUMENT THAT A DIRECTIVE MAY NOT BE RELIED UPON AGAINST AN INDIVIDUAL , IT MUST BE EMPHASIZED THAT ACCORDING TO ARTICLE 189 OF THE EEC TREATY THE BINDING NATURE OF A DIRECTIVE , WHICH CONSTITUTES THE BASIS FOR THE POSSIBILITY OF RELYING ON THE DIRECTIVE BEFORE A NATIONAL COURT , EXISTS ONLY IN RELATION TO ' EACH MEMBER STATE TO WHICH IT IS ADDRESSED ' . IT FOLLOWS THAT A DIRECTIVE MAY NOT OF ITSELF IMPOSE OBLIGATIONS ON AN INDIVIDUAL AND THAT A PROVISION OF A DIRECTIVE MAY NOT BE RELIED UPON AS SUCH AGAINST SUCH A PERSON . IT MUST THEREFORE BE EXAMINED WHETHER , IN THIS CASE , THE RESPONDENT MUST BE REGARDED AS HAVING ACTED AS AN INDIVIDUAL .
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44. It must also be borne in mind that the principle of fiscal neutrality precludes, inter alia, economic operators carrying on the same activities from being treated differently as far as the levying of VAT is concerned ( Kügler , cited above, paragraph 30).
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58 In that connection, the case-law of the Court of Justice shows that only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Article 92(1). The distinction made in that provision between aid granted by a Member State and aid granted through State resources does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (see Case 82/77 Van Tiggele [1978] ECR 25, paragraphs 24 and 25; Sloman Neptun, paragraph 19; Case C-189/91 Kirsammer-Hack [1993] ECR I-6185, paragraph 16; Joined Cases C-52/97, C-53/97 and C-54/97 Viscido [1998] ECR I-2629, paragraph 13; Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 35; Case C-295/97 Piaggio [1999] ECR I-3735, paragraph 35).
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19 As the Court held in its judgment in Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele ([1978] ECR 25, paragraphs 23-25), only advantages which are granted directly or indirectly through State resources are to be regarded as State aid within the meaning of Article 92(1) of the EEC Treaty. The wording of this provision itself and the procedural rules laid down in Article 93 of the EEC Treaty show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question. The distinction between aid granted by the State and aid granted through State resources serves to bring within the definition of aid not only aid granted directly by the State, but also aid granted by public or private bodies designated or established by the State.
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20
Under the common system of VAT, the Member States are required to ensure compliance with the obligations to which taxable persons are subject, and they enjoy in that respect a certain latitude, inter alia, as to how they use the means at their disposal (judgments in Commission v Italy, C‑132/06, EU:C:2008:412, paragraph 38, and Belvedere Costruzioni, C‑500/10, EU:C:2012:186, paragraph 21).
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15
Given that the questions referred concern both the provisions of the Parent-Subsidiary Directive and those of the Treaty and that, according to settled case-law, any national measure in an area which has been the subject of exhaustive harmonisation at the level of the European Union must be assessed in the light of the provisions of that harmonising measure, and not in the light of the provisions of primary law (judgment of 8 March 2017, Euro Park Service, C‑14/16, EU:C:2017:177, paragraph 19 and the case-law cited), it is necessary to determine first of all whether Article 1(2) of the Parent-Subsidiary Directive carries out such harmonisation.
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19
In accordance with settled case-law, any national measure in an area which has been the subject of exhaustive harmonisation at the level of the European Union must be assessed in the light of the provisions of that harmonising measure, and not in the light of the provisions of primary law (judgment of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 40 and the case-law cited).
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55
It follows from the foregoing considerations that Article 7(2) of Directive 2008/118 must be interpreted as meaning that the sale of excise goods held by an authorised warehousekeeper in a tax warehouse does not bring about their release for consumption until the time at which those goods are physically removed from that tax warehouse.
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