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41. However, that interpretation of Article 18 TFEU, the background to which concerns Union citizenship (see, to that effect, Case C‑209/03 Bidar [2005] ECR I-2119, paragraphs 37 and 39), cannot be applied as it stands to a situation where a third-country national is in possession of a permit for residence in a Member State.
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37. With regard to social assistance benefits, the Court held in Case C‑456/02 Trojani [2004] ECR I‑0000, paragraph 43, that a citizen of the Union who is not economically active may rely on the first paragraph of Article 12 EC where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit.
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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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59. That is true, in particular, of a measure under which a distinction is drawn on the basis of residence, in that that requirement is liable to operate mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners (see, inter alia, Case C-224/97 Ciola [1999] ECR I‑2517, paragraph 14; Case C‑388/01 Commission v Italy , paragraph 14; Case C‑103/08 Gottwald [2009] ECR I-9117, paragraph 28; and Case C-73/08 Bressol and Others [2010] ECR I-0000, paragraph 45).
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45. A residence condition, such as that required by that legislation, is more easily satisfied by Belgian nationals, who more often than not reside in Belgium, than by nationals of other Member States, whose residence is generally in a Member State other than Belgium (see, by analogy, Case C-337/97 Meeusen [1999] ECR I-3289, paragraphs 23 and 24, and Hartmann , paragraph 31).
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70. La Cour a également jugé qu’un État membre qui, lors de l’exécution d’une décision de la Commission en matière d’aides d’État, rencontre des difficultés imprévues et imprévisibles ou prend conscience de conséquences non envisagées par la Commission doit soumettre ces problèmes à l’appréciation de cette dernière en proposant des modifications appropriées de la décision en cause. Dans un tel cas, l’État membre et la Commission doivent, en vertu de la règle imposant aux États membres et aux institutions de l’Union des devoirs réciproques de coopération loyale, qui inspire, notamment, l’article 4, paragraphe 3, TFUE, collaborer de bonne foi en vue de surmonter les difficultés dans le plein respect des dispositions du traité et, notamment, de celles relatives aux aides (arrêts précités du 22 décembre 2010, Commission/Italie, point 37 et jurisprudence citée, ainsi que du 14 juillet 2011, Commission/Italie, point 35).
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19 Pecuniary charges under a general system of internal taxation applying systematically to domestic and imported products according to the same criteria, on the other hand, are covered by Article 95 et seq. of the Treaty (Celbi, cited above, paragraph 11). Those provisions prohibit a Member State from directly or indirectly imposing on the products of other Member States any internal taxation in excess of that imposed on similar domestic products or of such a nature as to afford protection to other domestic products, and therefore the criterion for the application of Article 95 is whether or not those charges are discriminatory or protective (see in particular Case C-17/91 Lornoy and Others v Belgium [1992] ECR I-6523, paragraph 19).
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19 Article 95 prohibits Member States from directly or indirectly imposing on the products of other Member States any internal taxation in excess of that imposed on similar domestic products or of such a nature as to afford protection to other domestic products. The applicability of the provision in question therefore depends on whether or not the internal taxation measure is discriminatory or protective (judgment in Compagnie Commerciale de l' Ouest, cited above, paragraph 25).
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8. Il suffit 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 que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 13 avril 2000, Commission/Luxembourg, C‑348/99, Rec. p. I‑2917, point 8, et du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9).
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56
It is settled case-law that the general principle which guarantees any litigant the right to plead, in an action brought against a national measure which adversely affects him, that the EU act forming the basis for that measure is invalid does not preclude such a right from being subject to the condition that the person concerned did not have the right to request the EU judicature directly to annul it, under Article 263 TFEU. However, it is only if it can be held that a person would undoubtedly have been entitled to request the annulment of the act in question that he is prevented from pleading its invalidity before the national court having jurisdiction (see, to this effect, judgments in TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 23; Valimar, C‑374/12, EU:C:2014:2231, paragraphs 28 and 29; and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 18).
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28. It must be pointed out that the possibility for a litigant to plead before the court hearing its action the invalidity of provisions in European Union acts presupposes that the party in question had no right of direct action under Article 263 TFEU by which it could challenge those provisions (see judgments in TWD Textilwerke Deggendorf (EU:C:1994:90), paragraph 23, and Bolton Alimentari , C‑494/09, EU:C:2011:87, paragraph 22).
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50. With regard to the latter condition, it should be noted that clause 5(1) of the framework agreement places on Member States the mandatory requirement of effective adoption of at least one of the measures listed in that provision intended to prevent the abusive use of successive fixed-term employment contracts or relationships, where domestic law does not already include equivalent measures.
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43
Moreover, every transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question (judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 39).
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39
Moreover, every transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question (judgment of 19 November 2015 in SBS Belgium, C‑325/14, EU:C:2015:764, paragraph 17 and the case-law cited).
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50. Il convient de constater que M me Lindorfer, en invoquant la méconnaissance par le Tribunal du principe de non‑discrimination et celui d’égalité de traitement des sexes estime, en effet, que l’un des principes généraux protégés par l’ordre juridique communautaire a été violé. À cet égard, il y a également lieu de relever que l’article 141 CE et les diverses dispositions du droit dérivé auxquelles M me Lindorfer fait référence, ainsi que l’article 1 er bis, paragraphe 1, du statut, sont des expressions spécifiques du principe général d’égalité des sexes.
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59. While the Court of Justice has concluded from this that it is permissible, for the determination of the fine, to take into account both the undertaking’s overall turnover, which is an indication of the size of the undertaking and its economic strength, and that part of the turnover which derives from the goods which are the subject of the infringement and which therefore is capable of giving an indication of the scale of the infringement, it has nevertheless recognised that the overall turnover of an undertaking gives only an approximate and imperfect indication of the size of that undertaking ( Musique Diffusion française and Others v Commission , paragraph 121; Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 139; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 243; Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraph 100; and Case C‑510/06 P Archer Daniels Midland v Commission [2009] ECR I‑1843, paragraph 74).
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121 IT FOLLOWS THAT , ON THE ONE HAND , IT IS PERMISSIBLE , FOR THE PURPOSE OF FIXING THE FINE , TO HAVE REGARD BOTH TO THE TOTAL TURNOVER OF THE UNDERTAKING , WHICH GIVES AN INDICATION , ALBEIT APPROXIMATE AND IMPERFECT , OF THE SIZE OF THE UNDERTAKING AND OF ITS ECONOMIC POWER , AND TO THE PROPORTION OF THAT TURNOVER ACCOUNTED FOR BY THE GOODS IN RESPECT OF WHICH THE INFRINGEMENT WAS COMMITTED , WHICH GIVES AN INDICATION OF THE SCALE OF THE INFRINGEMENT . ON THE OTHER HAND , IT FOLLOWS THAT IT IS IMPORTANT NOT TO CONFER ON ONE OR THE OTHER OF THOSE FIGURES AN IMPORTANCE DISPROPORTIONATE IN RELATION TO THE OTHER FACTORS AND , CONSEQUENTLY , THAT THE FIXING OF AN APPROPRIATE FINE CANNOT BE THE RESULT OF A SIMPLE CALCULATION BASED ON THE TOTAL TURNOVER . THAT IS PARTICULARLY THE CASE WHERE THE GOODS CONCERNED ACCOUNT FOR ONLY A SMALL PART OF THAT FIGURE . IT IS APPROPRIATE FOR THE COURT TO BEAR IN MIND THOSE CONSIDERATIONS IN ITS ASSESSMENT , BY VIRTUE OF ITS POWERS OF UNLIMITED JURISDICTION , OF THE GRAVITY OF THE INFRINGEMENTS IN QUESTION .
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20 The midwives work under a three-shift system from 7 a.m. to 3.30 p.m., from 2 p.m. to 10 p.m., and from 9.30 p.m. to 7.30 a.m. The roster is drawn up for periods of 15 weeks. The JämO argues that midwives on the labour ward are the only group of workers who work on a shift basis in the Swedish health care sector.
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35. It should also be remembered that the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 234 EC, the Court gives to a rule of Community law clarifies and defines, where necessary, the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force (see, inter alia, Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16; Case C-50/96 Deutsche Telekom [2000] ECR I-743, paragraph 43; and Kühne & Heitz , paragraph 21). In other words, a preliminary ruling does not create or alter the law, but is purely declaratory, with the consequence that in principle it takes effect from the date on which the rule interpreted entered into force (see, to this effect, Case C-137/94 Richardson [1995] ECR I‑3407, paragraph 33).
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21. To determine whether that is so, in the absence of Community rules at the material time, it is for the national court to take into account national commercial practices and traditional cutting methods.
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9. Following the judgment in Voogd Vleesimport en -export , cited above, Kühne & Heitz requested from the Productschap payment of the refunds which the latter had, in its view, wrongly required it to reimburse and sought payment of a sum equivalent to the greater amount which it would have received by way of refunds if the chicken legs exported after December 1987 had been classified in accordance with that judgment.
10. The Productschap rejected those requests and, ruling on the complaint submitted to it, upheld its earlier decision to reject, by decision of 21 July 1997. Kühne & Heitz then brought an action against that latter decision, which is the subject of the main proceedings.
The order for reference and the question referred for a preliminary ruling
11. In its order for reference, the College van Beroep voor het bedrijfsleven rejected the second head of claim submitted to it by Kühne & Heitz for payment of a sum equivalent to the greater amount to which, in its view, it is entitled in respect of its exports after December 1987.
12. With respect to the first head of claim submitted by Kühne & Heitz for payment of the refunds which, in its view, it had been wrongly required to reimburse, the College van Beroep voor het bedrijfsleven stated that under Netherlands law, administrative bodies, in principle, always have the power to reopen a final decision. The existence of such a power may, in certain circumstances, imply an obligation to withdraw such a decision.
13. The College van Beroep voor het bedrijfsleven takes the view that the Productschap failed to take account of those factors when it claimed that Kühne & Heitz could bring only one action for revision of the judgment of 22 November 1991 before that court. The Productschap therefore relied on a misinterpretation of the law.
14. However, the College van Beroep voor het bedrijfsleven considered that, although it was, in principle, possible to annul the decision of 21 July 1997 on that ground, such annulment would serve a purpose only if it were certain that the Productschap not only had the power to reopen its previous decision but also an obligation to review whether there is, in the case of each of the exported goods, a right to a refund and, if so, to determine the amount of that refund.
15. The College van Beroep voor het bedrijfsleven observes that the assessment of whether there is an obligation to review must be based on the principle that judicial decisions given subsequent to a final administrative decision cannot, in themselves, affect the finality of that decision. That applies equally in the case of preliminary rulings given by the Court of Justice to the effect that the law ought to have been applied in accordance with the interpretation given by the Court from the entry into force of the rule interpreted, unless the Court has expressly held otherwise. The national court states that the argument seeking to establish a rule that final decisions must be amended in order to make them consistent with subsequent case-law ─ in the present case, Community case-law ─ would give rise to administrative chaos, seriously impair legal certainty and therefore cannot be accepted.
16. However, the College van Beroep voor het bedrijfsleven points out that, under Netherlands law, subsequent case-law may, in certain circumstances, have an effect in cases in which the legal remedies have been exhausted. It refers to the case-law of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) on the effects in criminal-law cases of judgments given by the European Court of Human Rights. The Hoge Raad der Nederlanden thus held, in a judgment of 1 February 1991 (Nederlandse Jurisprudentie ─ NJ ─ 1991, p. 413), that the subsequent discovery of an infringement of a fundamental right laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is one determining factor which may preclude enforcement of a decision given in a criminal law case which cannot be the subject of an appeal.
17. The College van Beroep voor het bedrijfsleven is uncertain whether the finality of an administrative decision must be disregarded in a case such as that which has been brought before it in which, first, Kühne & Heitz has exhausted the legal remedies available to it, second, its interpretation of Community law has proved to be contrary to a judgment given subsequently by the Court and, third, the person concerned complained to the administrative body immediately after becoming aware of that judgment of the Court.
18. That question is justified in the light of, in particular, Article 234 EC, according to which a national court against whose decision there is no judicial remedy is obliged to refer the question to the Court for a preliminary ruling. In 1991, the College van Beroep voor het bedrijfsleven mistakenly took the view that it was released from that obligation because, in accordance with the judgment in Case 283/81 CILFIT [1982] ECR 3415, it considered that the interpretation of the customs tariff subheadings concerned left no room for doubt. The national court is therefore uncertain whether effective and full implementation of Community law requires that, in a case such as that which has been brought before it, the rule on the finality of administrative decisions be relaxed.
19. In the light of those factors, the College van Beroep voor het bedrijfsleven decided to stay proceedings and refer the following question to the Court for a preliminary ruling:
" Under Community law, in particular under the principle of Community solidarity contained in Article 10 EC, and in the circumstances described in the grounds of this decision, is an administrative body required to reopen a decision which has become final in order to ensure the full operation of Community law, as it is to be interpreted in the light of a subsequent preliminary ruling?"
The question referred for a preliminary ruling
20. As the Court has already held, it is for all the authorities of the Member States to ensure observance of the rules of Community law within the sphere of their competence (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 13).
21. The interpretation which, in the exercise of the jurisdiction conferred on it by Article 234 EC, the Court gives to a rule of Community law clarifies and defines, where necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force (see, inter alia, Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16, and Case C-50/96 Deutsche Telekom [2000] ECR I-743, paragraph 43).
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37. Dans ces conditions, il n’est pas nécessaire de vérifier s’il est satisfait au critère relatif à la bonne foi des milieux intéressés.
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43. Second, the Court has already held that a law such as the BerlBesÜG appears suited to achieving the aim pursued, that is to say, to ensure the preservation of acquired rights (judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 65 to 68). It went on to state that the national legislature did not go beyond what was necessary to achieve the aim pursued by adopting the transitional derogation measures put in place by the BerlBesÜG (judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 69 to 85).
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72. As regards, in the first place, the context in which the Law establishing the Land Berlin transitional system was adopted, it should be noted that, according to the requests for a preliminary ruling, even before the judgment in Hennigs and Mai (EU:C:2011:560) was delivered, the competent national legislative authorities repealed the old version of the BbesG and, in order to eliminate the discrimination on grounds of age which flawed that legislation, reformed the system for the remuneration of federal civil servants and those of Land Berlin.
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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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23
It must be recalled, in that regard, that, according to settled case-law, that provision pursues an aim in the public interest, which implies that all signs or indications which may serve to designate characteristics of the goods or services in respect of which registration is sought remain freely available to all undertakings in order that they may use them when describing the same characteristics of their own goods. Marks consisting exclusively of such signs or indications are not eligible for registration unless Article 3(3) of the directive applies (judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraphs 54 and 55 and the case-law cited).
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54. As the Court has already held ( Windsurfing Chiemsee , paragraph 25, Linde , paragraph 73, and Libertel , paragraph 52), Article 3(1)(c) of the Directive pursues an aim which is in the public interest, namely that such signs or indications may be freely used by all. Article 3(1)(c) therefore prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks.
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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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25 The freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established (see, in particular, Case 279/80 Webb [1981] ECR 3305, paragraph 17; Säger, paragraph 15; Vander Elst, paragraph 16; Guiot, paragraph 11; and Arblade, paragraph 34).
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11. Even if there is no harmonization in the field, the freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements of public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established (see, in particular, Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 17, Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 18, and Vander Elst , referred to above, paragraph 16).
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31 As is clear from the scheme of the Directive, the identification of waters within the meaning of Article 3(1) forms part of a process which also encompasses the designation of vulnerable zones and the establishment of action programmes. It would thus be incompatible with the Directive to restrict the identification of waters affected by pollution to cases where agricultural sources alone give rise to a concentration of nitrates in excess of 50 mg/1 when, within the framework of that process, the Directive expressly provides that, in establishing the action programmes under Article 5, the respective nitrogen contributions originating from agricultural and other sources are to be taken into account.
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21 However, where such a restriction on the right of establishment is brought about by a provision of national law whose primary aim is to safeguard trade names against the risk of confusion, it is justified by overriding requirements in the general interest pertaining to the protection of industrial and commercial property (see, to that effect, Case 62/79 Coditel and Others [1980] ECR 881, paragraph 15).
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15 WHILST ARTICLE 59 OF THE TREATY PROHIBITS RESTRICTIONS UPON FREEDOM TO PROVIDE SERVICES , IT DOES NOT THEREBY ENCOMPASS LIMITS UPON THE EXERCISE OF CERTAIN ECONOMIC ACTIVITIES WHICH HAVE THEIR ORIGIN IN THE APPLICATION OF NATIONAL LEGISLATION FOR THE PROTECTION OF INTELLECTUAL PROPERTY , SAVE WHERE SUCH APPLICATION CONSTITUTES A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES . SUCH WOULD BE THE CASE IF THAT APPLICATION ENABLED PARTIES TO AN ASSIGNMENT OF COPYRIGHT TO CREATE ARTIFICIAL BARRIERS TO TRADE BETWEEN MEMBER STATES .
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22 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT NEITHER THE NATURE NOR THE STRUCTURE OF THE AGREEMENT CONCLUDED WITH PORTUGAL MAY PREVENT A TRADER FROM RELYING ON THE PROVISIONS OF THE SAID AGREEMENT BEFORE A COURT IN THE COMMUNITY .
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59. As is apparent from that paragraph, it is only inasmuch as, despite OHIM’s analysis, an applicant claims that a trade mark applied for is distinctive, that it is for that applicant to provide specific and substantiated information to show that the trade mark applied for has distinctive character ( Develey v OHIM , paragraph 50).
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50. Finally, it must be stated that it was correctly pointed out in paragraph 21 of the judgment under appeal that, if an applicant claims that a trade mark applied for is distinctive, despite OHIM’s analysis, it is for that applicant to provide specific and substantiated information to show that the trade mark applied for has either an intrinsic distinctive character or a distinctive character acquired by usage.
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43 In that regard it must be observed that, according to Article 9(4 ) of Law No 1571/85, distribution companies are required to obtain their supplies from Greek public-sector refineries to the extent of a percentage of the requirements of the domestic market corresponding to the unadjusted part of the marketing monopoly . It is plain from that provision that, by maintaining in force the State' s rights with regard to the importation and marketing of petroleum products, Greece is seeking, as it has itself acknowledged, to secure an outlet for the products of its public-sector refineries .
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16 It should also be noted that even though a directive is in principle binding only on the parties to whom it is addressed, namely the Member States, it is normally a form of indirect regulatory or legislative measure. Moreover, the Court has already had occasion to classify a directive as a measure of general application (see, for example, the judgment in Case 70/83 Kloppenburg [1984] ECR 1075, paragraph 11, and the order in Case 160/88 R Fédération européenne de la santé animale v Council [1988] ECR 4121, paragraph 28).
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11 IN THAT REGARD , IT IS NECESSARY TO EMPHASIZE , AS THE COURT HAS ALREADY DONE ON SEVERAL OCCASIONS , THAT COMMUNITY LEGISLATION MUST BE UNEQUIVOCAL AND ITS APPLICATION MUST BE PREDICTABLE FOR THOSE WHO ARE SUBJECT TO IT . POSTPONEMENT OF THE DATE OF ENTRY INTO FORCE OF A MEASURE OF GENERAL APPLICATION , ALTHOUGH THE DATE INITIALLY SPECIFIED HAS ALREADY PASSED , IS IN ITSELF LIABLE TO UNDERMINE THAT PRINCIPLE . IF THE PURPOSE OF AN EXTENSION IS TO DEPRIVE INDIVIDUALS OF THE LEGAL REMEDIES WHICH THE FIRST MEASURE HAS ALREADY CONFERRED UPON THEM , SUCH AN EFFECT IN PRACTICE RAISES THE QUESTION OF THE VALIDITY OF THE AMENDING MEASURE .
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48. In the present case, in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24, the EU legislature’s discretion is reduced, with the result that review of that discretion should be strict.
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110
Furthermore, the Council and the Commission are obliged to adjudicate upon a claim for market economy treatment made by any producer established in a non-market economy country which is a member of the WTO at the date of the initiation of an anti-dumping investigation, including where they have recourse to sampling as provided for in Article 17 of Regulation No 384/96 (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraphs 32 and 36 to 38, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraphs 24, 29, 30 and 32).
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29. In the judgment in Brosmann Footwear (HK) and Others v Council , which annulled the contested regulation in so far as it concerned four other companies, it being held that there was an infringement of Article 2(7) of the basic regulation, the Court found, in paragraph 38 of that judgment, that the obligation on the Commission to adjudicate upon a claim from a trader wishing to claim MET is clear from the very wording of Article 2(7)(b) of that regulation.
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27 Indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community.
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42. That said, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. Consequently, even if, formally, the referring court has limited its third question to the interpretation of Directive 2004/38, that does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of European Union law which require interpretation in view of the subject-matter of the dispute (see Case C‑243/09 Fuß [2010] ECR I‑9849, paragraphs 39 and 40 and case-law cited).
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40. Consequently, even if, formally, the referring court has limited its questions to the interpretation of Article 22(1)(b) of Directive 2003/88, that does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of European Union law which require interpretation in view of the subject-matter of the dispute (see Case C‑229/08 Wolf [2010] ECR I‑0000, paragraph 32 and the case-law cited).
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20 The midwives work under a three-shift system from 7 a.m. to 3.30 p.m., from 2 p.m. to 10 p.m., and from 9.30 p.m. to 7.30 a.m. The roster is drawn up for periods of 15 weeks. The JämO argues that midwives on the labour ward are the only group of workers who work on a shift basis in the Swedish health care sector.
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97. As regards, secondly, the examination of the merits of this complaint, it must be stated that the Commission merely reiterated the factual background to that judgment, without providing the Court with the information necessary to determine the extent to which the Member State had complied with the judgment establishing the failure to fulfil obligations (see, to that effect, Case C-387/97 Commission v Greece [2000] ECR I‑5047, paragraph 73, and Case C-369/07 Commission v Greece [2009] ECR I-0000, paragraph 74).
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74. It should be pointed out, first, that, according to established case-law, in the context of proceedings under Article 228 EC, it is for the Commission to provide the Court with the information necessary to determine the extent to which a Member State has complied with a judgment declaring it to be in breach of its obligations (see Case C‑387/97 Commission v Greece [2000] ECR I-5047, paragraph 73).
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33. Or, s’agissant de produits de construction non couverts par l’article 4, paragraphe 2, de la directive 89/106, l’article 6, paragraphe 2, de celle-ci dispose que les États membres autorisent leur mise sur le marché sur leur territoire si ces produits satisfont à des dispositions nationales conformes au traité, et ce jusqu’à ce que les spécifications techniques européennes en disposent autrement.
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51. First of all, it should be noted that, as the Court held in paragraph 63 of Placanica and Others , it is for the national legal order to lay down detailed procedural rules to ensure the protection of the rights of operators unlawfully excluded from the first tendering procedure, provided, however, that those detailed rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness).
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63. As regards the consequences flowing from the unlawful nature of the exclusion of a certain number of operators from tender procedures for the award of existing licences, it is for the national legal order to lay down detailed procedural rules to ensure the protection of the rights which those operators derive by direct effect of Community law, provided, however, that those detailed rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by Community law (principle of effectiveness) (see Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraph 29, and Joined Cases C‑392/04 and C‑422/04 i‑21 Germany and Arcor [2006] ECR I‑0000, paragraph 57). In that connection, appropriate courses of action could be the revocation and redistribution of the old licences or the award by public tender of an adequate number of new licences. In any case, it should nevertheless be noted that, in the absence of a procedure for the award of licences which is open to operators who have been unlawfully barred from any possibility of obtaining a licence under the last tender procedure, the lack of a licence cannot be a ground for the application of sanctions to such operators.
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28
Consequently, the questions referred must be answered on the basis of that premiss, the accuracy of which it is, however, for the referring court to check.
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55
In that regard, it must be found that, in interpreting Article 1(2) of the Parent-Subsidiary Directive, it is irrelevant that the word ‘necessary’ does not appear expressly in the German language version of the provision. The Member States may, in any event, exercise the option provided for in that article only whilst observing the general principles of EU law and, more specifically, the principle of proportionality (see, by analogy, judgment of 17 July 1997, Leur-Bloem, C‑28/95, EU:C:1997:369, paragraphs 38 and 43).
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38. Secondly, Article 11(1)(a) allows the Member States to refuse to apply or withdraw the benefit of all or any part of the provisions of the Directive, including the tax advantages to which the main proceedings relate, where it appears that the merger, division, transfer of assets or exchange of shares has, in particular, as its principal objective or as one of its principal objectives tax evasion or tax avoidance.
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22 The Court added (at paragraph 20) that to decide in favour only of the place of the event giving rise to the damage would, in an appreciable number of cases, cause confusion between the heads of jurisdiction laid down by Articles 2 and 5(3) of the Convention, so that the latter provision would, to that extent, lose its effectiveness.
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22. According to settled case-law, it is for the competent national authorities to show that their rules are necessary in order to attain one or more objectives mentioned in Article 30 EC or meet imperative requirements and, where appropriate, that the marketing of the products in question poses a serious risk to public health and that those rules are in conformity with the principle of proportionality (Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 40; Case C-358/95 Morellato [1997] ECR I-1431, paragraph 14; Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 67; and Commission v Italy , cited above, paragraph 30).
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14 It is settled case-law that an exception to the principle of the free movement of goods may be justified under Article 36 only if the national authorities show that it is necessary in order to attain one or more objectives mentioned in that article - in this case the protection of public health - and that it is in conformity with the principle of proportionality.
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27. The contested decision was notified to the Kingdom of Belgium on 5 December 2000 under number C (2000) 3563.
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46. In that regard, the Court has already ruled on the meaning of ‘necessary adaptations’ in the context of acts of accession, holding that the adaptation measures provided for by such acts, as a general rule, authorise only adaptations intended to render earlier Community measures applicable in the new Member States, to the exclusion of all other amendments (see, to that effect, in relation to Article 169 of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21), Case C‑259/95 Parliament v Council [1997] ECR I‑5303, paragraphs 14 and 19; and, in respect of Article 57 of the Act of Accession, Case C‑413/04 Parliament v Council [2006] ECR I‑11221, paragraphs 31 to 38, and Case C‑414/04 Parliament v Council [2006] ECR I‑11279, paragraphs 29 to 36).
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35. Furthermore, the grant of temporary derogations in view of the prospect of imminent accession is, as correctly pointed out by the Parliament and the Commission, the specific subject of another provision of the 2003 Act of Accession, namely Article 55, and it is, in that regard, difficult to imagine that the signatories to that act intended to lay down two distinct provisions for the purpose of enabling the adoption of the same measure.
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43. The Court notes that Directive 91/414 is aimed not only at improving plant production and removing barriers to intra-Community trade in plant products, but also at protecting human and animal health and the environment (see, to that effect, Case C‑174/05 Zuid‑Hollandse Milieufederatie and Natuur en Milieu [2006] ECR I-2443, paragraph 30).
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40 In this case, as regards, first, the alleged omissions and factual errors in the order for reference, it is sufficient to note that it is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see, in particular, Case C-435/97 World Wildlife Fund [1999] ECR I-5613, paragraph 32).
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32 It is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see Case 17/81 Pabst & Richarz v Hauptzollamt Oldenburg [1982] ECR 1331, paragraph 12, AC-ATEL Electronics Vertriebs, cited above, paragraph 17, and Levez, cited above, paragraph 26).
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29. It follows that forfeiture of a part of the security equal to the difference between the amount of the refund paid in advance and the amount of the refund actually due, without any penalty being imposed, is commensurate with the objective pursued by the legislature.
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117. In view of the extent of the discretion enjoyed by the Council in this case, the contested decision cannot be regarded as breaching the principle of proportionality only because it would have been possible for the Republic of Lithuania to pursue the objectives referred to in paragraph 111 above by means of another type of aid scheme. It is settled case-law that, when assessing whether a decision taken on the basis of discretionary power such as that enjoyed by the Council under the third subparagraph of Article 108(2) TFEU complies with the principle of proportionality, what must be ascertained by the Court is not whether the adopted decision was the only measure possible or the best measure possible, but only whether it was manifestly disproportionate (see, by analogy, Case C‑33/08 Agrana Zucker [2009] ECR I‑5035, paragraph 33 and the case-law cited).
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33. What must be ascertained is therefore not whether the measure adopted by the legislature was the only measure possible or the best measure possible but whether it was manifestly inappropriate ( Spain v Council , paragraph 99 and the case-law cited).
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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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20. The concept of ‘intervention through State resources’ is intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see, to that effect, inter alia, Case 78/76 Steinike & Weinlig [1977] ECR 595, paragraph 21; Sloman Neptun , paragraph 19; and Doux Élevage and Coopérative agricole UKL-ARREE , paragraph 26).
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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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17 Although it is true that the application of those provisions may give rise to practical difficulties, that fact, as already pointed out by the Court in paragraph 12 of its judgment in Case 187/73 Callemeyn v Belgium [1974] ECR 553, paragraph 12, must not prejudice the rights which individuals derive from the principles of the social legislation of the Community . It should be pointed out, moreover, that practical problems may always be referred to the Administrative Commission on Social Security for Migrant Workers, specifically set up for that purpose by Article 81(d ) of Regulation No 1408/71 .
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12 THE DIFFICULTIES THAT MIGHT ARISE FROM THE APPLICATION OF THE COMMUNITY REGULATIONS TO THESE PROVISIONS MUST NOT PREJUDICE THE RIGHTS WHICH THE WORKERS REFERRED TO BY ARTICLE 1 ( A ) OF REGULATION NO 1408/71 DERIVE FROM THE PRINCIPLES OF THE SOCIAL LEGISLATION OF THE COMMUNITY .
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59. Toutefois, un moyen qui constitue une amplification d’un moyen énoncé antérieurement, directement ou implicitement, dans la requête introductive d’instance doit être considéré comme recevable (voir arrêt du 15 décembre 2005, Italie/Commission, C‑66/02, Rec. p. I‑10901, point 86 et jurisprudence citée).
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33. Furthermore, the expression aid, for the purposes of Article 4(c) CS, necessarily implies advantages granted directly or indirectly through State funds or constituting an additional charge for the State or for bodies designated or established by the State for that purpose (see, inter alia , Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele [1978] ECR 25, paragraphs 23 to 25; Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, paragraphs 19 and 21; Joined Cases C-52/97 to C-54/97 Viscido and Others v Ente Poste Italiane [1998] ECR I-2629, paragraph 13; and Ecotrade , cited above, paragraph 35).
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21 The system at issue does not seek, through its object and general structure, to create an advantage which would constitute an additional burden for the State or the abovementioned bodies, but only to alter in favour of shipping undertakings the framework within which contractual relations are formed between those undertakings and their employees. The consequences arising from this, in so far as they relate to the difference in the basis for the calculation of social security contributions, mentioned by the national court, and to the potential loss of tax revenue because of the low rates of pay, referred to by the Commission, are inherent in the system and are not a means of granting a particular advantage to the undertakings concerned.
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29. It follows that the process of checking requests for refunds must be regarded as an integral part of the system of export refunds provided for by Regulation No 3665/87. In order to determine which document constitutes the request for refund, the document which must be taken into consideration is not that which seeks the payment of the refund, but that which triggers the system of checks of the request for refund.
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35
It is appropriate first of all to recall, as regards the allocation of the various roles between the applicant for a declaration of invalidity, the competent bodies of EUIPO and the General Court, first, that Rule 37 of the implementing regulation provides that the applicant must provide particulars showing that he is entitled under the national law applicable to lay claim to an earlier right protected under national law. That rule requires the applicant, in order to be able to have the use of an EU trade mark prohibited by virtue of an earlier right, to provide EUIPO with, not only particulars showing that he satisfies the necessary conditions under the national law which he seeks to have applied, but also particulars establishing the content of that law (see, to that effect, judgments of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraphs 49 and 50, and of 27 March 2014, OHIM v National Lottery Commission, C‑530/12 P, EU:C:2014:186, paragraph 34).
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50. That rule requires the applicant to provide OHIM not only with particulars showing that he satisfies the necessary conditions, in accordance with the national law of which he is seeking application, in order to be able to have the use of a Community trade mark prohibited by virtue of an earlier right, but also particulars establishing the content of that law.
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34 It is clear that scientific research is characteristically one of the proper functions of a university . Not only does a proportion of university staff devote its time exclusively to research but research constitutes in principle an essential element in the work of most university teachers and of some students, for example those studying for a doctorate or similar qualification .
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116. However, in order for health and public policy concerns to justify a restriction such as that resulting from the prior authorisation system at issue in the main proceedings, the measure in question must be proportionate to the objective to be achieved and not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States (judgment in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 29; see also, to that effect, judgment in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraphs 41 and 43).
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41. Nevertheless, it is necessary, as required by Article 30 EC, that the measure under consideration should not constitute either a means of arbitrary discrimination or a disguised restriction on trade between Member States.
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15 Castello submits that this latter provision is invalid. It argues that a penalty as severe as loss of entitlement to aid may attach to the obligation to grow soya beans within the territory of the Community, which is the primary obligation under the system of aid introduced in 1985, but may not attach to the obligation to notify changes of a certain extent in the use of the areas sown, which is no more than a secondary obligation under the system of aid.
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12 It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-394/00 Commission v Ireland [2002] ECR I-581, paragraph 12).
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12 Moreover, the Court has repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-435/99 Commission v Portugal [2000] ECR I-11179, paragraph 16, and Case C-111/00 Commission v Austria [2001] ECR I-7555, paragraph 13).
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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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23. It should be noted that the measures prohibited by Article 56(1) EC, as restrictions on the movement of capital, include those which are likely to discourage non‑residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (see Case C‑513/03 Van Hilten-van der Heijden [2006] ECR I‑1957, paragraph 44; Case C‑370/05 Festersen [2007] ECR I‑1129, paragraph 24; and Case C‑101/05 A [2007] ECR I‑11531, paragraph 40).
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44. In that regard, it follows from the case‑law that the measures prohibited by Article 73b(1) of the Treaty, as being restrictions on the movement of capital, include those which are likely to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents to do so in other States or, in the case of inheritances, those whose effect 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 (see to that effect Case C‑484/93 Svensson and Gustavsson [1995] ECR I‑3955, paragraph 10; Trummer and Mayer , paragraph 26; Case C‑439/97 Sandoz [1999] ECR I‑7041, paragraph 19; and Barbier , paragraph 62).
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40 That conclusion must, however, be qualified. It relates only to benefits ° being all that is mentioned in Protocol No 2 ° and not to the right to belong to an occupational social security scheme.
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46. It follows also from settled case-law concerning the admissibility of actions for annulment that it is necessary to look to the actual substance of the acts challenged in order to classify them (see, in particular, Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Case C‑147/96 Netherlands v Commission [2000] ECR I‑4723, paragraph 27).
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27 In order to ascertain whether or not a measure which has been challenged produces such effects it is necessary to look to its substance (see IBM v Commission, cited above, paragraph 9).
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53FROM THE STANDPOINT OF BEING ABLE TO ENGAGE IN FREE COMPETITION THESE SIX STATES FORM AN AREA WHICH IS SUFFICIENTLY HOMOGENEOUS TO BE CONSIDERED IN ITS ENTIRETY .
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14 The Court also held in that judgment that the Community rules, which seek to control the quantities of textile products imported from certain non-member countries, pursue an entirely different objective from that of Regulation No 1224/80, the purpose of which is to establish a fair, uniform and neutral system of customs valuation of goods for the application of the Common Customs Tariff. The latter regulation must therefore be interpreted without reference to the rules on the system of export and import licences (paragraph 14 of the Ospig judgment). On the basis of the foregoing, the Court decided that under the rules in question the quota charges incurred in connection with the acquisition of export quotas could not be taken into account for the calculation under Regulation No 1224/80 of the value of the goods for customs purposes.
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14 THOSE RULES , WHICH SEEK ONLY TO CONTROL THE QUANTITIES OF TEXTILE PRODUCTS IMPORTED FROM CERTAIN NON-MEMBER COUNTRIES , PURSUE AN ENTIRELY DIFFERENT OBJECTIVE FROM THAT OF REGULATION NO 1224/80 , AS AMENDED , WHOSE PURPOSE IS TO ESTABLISH A FAIR , UNIFORM AND NEUTRAL SYSTEM OF CUSTOMS VALUATION OF GOODS FOR THE APPLICATION OF THE COMMON CUSTOMS TARIFF . THE LATTER REGULATION MUST THEREFORE BE INTERPRETED WITHOUT REFERENCE TO THE RULES ON THE SYSTEM OF EXPORT AND IMPORT LICENCES .
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103. As proposed by the Advocate General in points 115 and 116 of her Opinion and in order to respect the legitimate expectations of the selected candidates, the results of the contested competitions are not to be called into question.
Costs
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24. It is undisputed that Regulation No 2152/2003 was adopted on the basis of Article 175 EC which falls within Title XIX of the EC Treaty, devoted to Community policy on the environment. The Community rules in this area do not seek to effect complete harmonisation (Case C-6/03 Deponiezweckverband Eiterköpfe [2005] ECR I-2753, paragraph 27). Even though Article 174 EC refers to certain Community objectives to be attained, Article 176 EC allows the Member States to introduce more stringent protective measures (Case C-318/98 Fornasar and Others [2000] ECR I-4785, paragraph 46, and Deponiezweckverband Eiterköpfe , paragraph 27).
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27. The first point to be noted is that the Community rules do not seek to effect complete harmonisation in the area of the environment. Even though Article 174 EC refers to certain Community objectives to be attained, Article 176 EC allows the Member States to introduce more stringent protective measures (Case C-318/98 Fornasar and Others [2000] ECR I-4785, paragraph 46). Article 176 EC makes such measures subject only to the conditions that they should be compatible with the Treaty and that they should be notified to the Commission.
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29. Since the common standards and procedures established by Directive 2008/115 concern only the adoption of return decisions and the implementation of those decisions, it should also be pointed out that that directive does not preclude a third-country national being placed in detention with a view to determining whether or not his stay is lawful.
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14. In that context, the Directive draws a distinction between, on the one hand, products held for commercial purposes and, on the other hand, products held for private purposes ( Joustra , paragraph 28).
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28. In this respect, as is apparent inter alia from the fifth and sixth recitals in its preamble, the Directive draws a distinction between, on the one hand, products held for commercial purposes, in respect of which accompanying documents are required for transportation purposes, and, on the other hand, products held for private purposes, in respect of which no document is required (see, to that effect, EMU Tabac and Others , paragraphs 23 and 24).
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31. According to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Unon law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22; Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I‑0000, paragraph 27; and Bruno and Others , paragraph 19).
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46. As regards, first, the admissibility of this ground of appeal, it is clear from Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal is limited to points of law and must be based on grounds of lack of jurisdiction of the Court of First Instance, breach of procedure before it which adversely affects the interests of the applicant, or infringement of Community law by the Court of First Instance (see, to that effect, inter alia Case C‑284/98 P Parliament v Bieber [2000] ECR I‑527, paragraph 30; order in Case C‑420/04 P Gouvras v Commission [2005] ECR I‑7251, paragraph 48; and order of 20 March 2007 in Case C‑323/06 P Kallianos v Commission , paragraph 10).
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30 On this point, it must be noted that under Article 168a of the EC Treaty (now Article 225 EC) and Article 51 of the EC Statute of the Court of Justice an appeal is limited to points of law and must be based on the grounds of lack of competence of the Court of First Instance, breach of procedure before it which adversely affects the interests of the appellant, or infringement of Community law by the Court of First Instance (see, inter alia, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 47, and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 18).
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21 It is sufficient to observe that any inequality of treatment between exporters established in the Union and their competitors established in other Member States is merely the result of differences in legislation between the Member States in question .
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51. Against that background, such a bilateral convention may apply in relations between the two contracting Member States despite its restrictive effects on trade if it is shown that it is necessary and proportionate and capable of upholding the reputation of the designation of origin concerned (see, to that effect, Belgium v Spain , paragraphs 58 and 59).
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58 The rules governing the Rioja denominación de origen calificada are designed to uphold those qualities and characteristics. By ensuring that operators in the wine growing sector of the Rioja region, at whose request the designation of origin was granted, control bottling as well, they pursue the aim of better safeguarding the quality of the product and, consequently, the reputation of the designation, for which they now assume full and collective responsibility.
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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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34
In that regard, it must be recalled that, in the absence of harmonisation of EU law, the definition of the connecting factor that determines the national law applicable to a company or firm falls, in accordance with Article 54 TFEU, within the powers of each Member State, that article having placed on the same footing the registered office, the central administration and the principal place of business of a company or firm as such connecting factors (see, to that effect, judgment of 27 September 1988, Daily Mail and General Trust, 81/87, EU:C:1988:456, paragraphs 19 to 21).
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21 The Treaty has taken account of that variety in national legislation . In defining, in Article 58, the companies which enjoy the right of establishment, the Treaty places on the same footing, as connecting factors, the registered office, central administration and principal place of business of a company . Moreover, Article 220 of the Treaty provides for the conclusion, so far as is necessary, of agreements between the Member States with a view to securing inter alia the retention of legal personality in the event of transfer of the registered office of companies from one country to another . No convention in this area has yet come into force .
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14. À cet égard il convient de rappeler qu’il résulte de l’article 38, paragraphe 1, sous c), du règlement de procédure de la Cour et de la jurisprudence y relative que toute requête introductive d’instance doit indiquer l’objet du litige et l’exposé sommaire des moyens, et que cette indication doit être suffisamment claire et précise pour permettre à la partie défenderesse de préparer sa défense et à la Cour d’exercer son contrôle. Il en découle que les éléments essentiels de fait et de droit sur lesquels un recours est fondé doivent ressortir d’une façon cohérente et compréhensible du texte de la requête elle-même et que les conclusions de cette dernière doivent être formulées de manière non équivoque afin d’éviter que la Cour ne statue ultra petita ou bien n’omette de statuer sur un grief (voir arrêt du 26 avril 2007, Commission/Finlande, C‑195/04, Rec. p. I‑3351, point 22 et jurisprudence citée).
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36. In line with paragraph 29 of the present judgment, regarding the concept of ‘other securities’ referred to in Article 13(B)(d)(5) of the Sixth Directive, it must be held that transactions that are exempt from VAT under paragraph 3 of that provision also relate to the sphere of financial transactions (see, to that effect, Velvet & Steel Immobilien EU:C:2007:232, paragraph 22).
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22. The same conclusion is also valid for the other transactions set out in subparagraphs 1 and 3 to 6 of Article 13B(d) of the Sixth Directive. Thus, subparagraph 1 concerns credit; subparagraph 3, deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments; subparagraph 4, legal tender; subparagraph 5, shares and other securities, and subparagraph 6, management of special investment funds. Although those transactions, defined according to the nature of the services provided, do not necessarily have to be carried out by banks or other financial institutions (see, to that effect, SDC , paragraph 32; Case C‑305/01 MKG-Kraftfahrzeuge-Factoring [2003] ECR I‑6729, paragraph 64; and Case C‑169/04 Abbey National [2006] ECR I‑4027, paragraph 66), they relate, nevertheless, as a whole, to the sphere of financial transactions.
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38 With regard to the right to be defended, to which the question submitted to the Court refers, this occupies a prominent position in the organisation and conduct of a fair trial and is one of the fundamental rights deriving from the constitutional traditions common to the Member States.
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55. Finally, such a system of prior authorisation cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of the provisions of the Regulation. Consequently, it must be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily (see, to that effect, Analir and Others , paragraphs 37 and 38).
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38 Therefore, if a prior administrative authorisation scheme is to be justified even though it derogates from a fundamental freedom, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily. Accordingly, the nature and the scope of the public service obligations to be imposed by means of a prior administrative authorisation scheme must be specified in advance to the undertakings concerned. Furthermore, all persons affected by a restrictive measure based on such a derogation must have a legal remedy available to them.
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22 It should be noted in that respect that, pursuant to Article 234 EC, where a question on the interpretation of the Treaty or of subordinate acts of the institutions of the Community is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon (see, in particular, Case C-412/93 Leclerc-Siplec [1995] ECR I-179, paragraph 9).
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33. In the second place, concerning the period of work to which the right to paid annual leave relates, and the possible consequences that an alteration in the work pattern, in relation to the number of hours worked, can or must have on the total leave rights already accumulated and on the exercise of those rights over time, it should be noted that, according to the Court’s settled case-law, the taking of annual leave in a period after the period during which the entitlement to leave has been accumulated has no connection to the time worked by the worker during that later period (judgment in Zentralbetriebsrat der Landeskrankenhäuser Tirols , C‑486/08, EU:C:2010:215, paragraph 32).
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32. It follows from the above that the taking of annual leave in a period after the reference period has no connection to the hours worked by the worker during that later period. Consequently, a change, and in particular a reduction, of working hours when moving from full-time to part-time employment cannot reduce the right to annual leave that the worker has accumulated during the period of full‑time employment.
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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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38
Thus, the Court has exercised the possibility of limiting the temporal effect of a declaration that an EU measure is invalid in the case where overriding considerations of legal certainty involving all the interests, public as well as private, at stake in the cases concerned precluded the calling into question of the charging or payment of sums of money effected on the basis of that measure in respect of the period prior to the date of the judgment (judgment of 8 November 2001, Silos, C‑228/99, EU:C:2001:599, paragraph 36).
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36 In accordance with that case-law, the Court has used the possibility of limiting the temporal effect of a declaration that a Community measure is invalid where overriding considerations of legal certainty involving all the interests, public as well as private, at stake in the cases concerned precluded the calling into question of the charging or payment of sums of money effected on the basis of that measure in respect of the period prior to the date of the judgment (see, inter alia, Case 4/79 Providence agricole de la Champagne [1980] ECR 2823, paragraphs 45 and 46, and Case 41/84 Pinna [1986] ECR 1, paragraph 28).
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56. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction.
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67. According to settled case-law, the first paragraph of Article 90 EC is infringed where the tax charged on the imported product and that charged on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product (see Case C-375/95 Commission v Greece [1997] ECR I‑5981, paragraphs 20 and 29, Outokumpu , paragraph 34, and Case C-393/98 Gomes Valente [2001] ECR I-1327, paragraph 21).
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21 As for the question whether the taking into account of the real depreciation of a second-hand car, to which the Nunes Tadeu judgment refers, requires an expert study of each vehicle, excluding the possibility of it being calculated in a general and abstract manner with the aid of a criterion laid down by statute, it should be remembered at the outset that, according to settled case-law, the first paragraph of Article 95 of the Treaty is infringed where the tax charged on the imported product and that charged on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product (Case C-375/95 Commission v Greece [1997] ECR I-5981, paragraph 20, and case-law cited therein; Case C-213/96 Outokumpu [1998] ECR I-1777, paragraph 34).
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46. Moreover, it should be pointed out that the directive does not lay down any further limitation of its scope of application.
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15
Since the referring court refers not only to Article 50 of the Charter, but also to Article 4 of Protocol No 7 to the ECHR, it should be noted that whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by that convention, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 45 and the case-law cited). Therefore, the examination of the question referred must be undertaken solely in the light of the fundamental rights guaranteed by the Charter (see, to that effect, judgments of 28 July 2016, Conseil des ministres, C‑543/14, EU:C:2016:605, paragraph 23 and the case-law cited, and of 6 October 2016, Paoletti and Others, C‑218/15, EU:C:2016:748, paragraph 22).
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23
Since the referring court refers not only to Article 47 of the Charter, but also to Article 14 of the ICCPR and Article 6 of the ECHR, it should be recalled that, whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (judgments of 26 February 2013 in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44; 3 September 2015 in Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45; and 15 February 2016 in N., C‑601/15 PPU, EU:C:2016:84, paragraph 45). This finding also applies to the ICCPR. Accordingly, an examination of the validity of Directive 2006/112 must be undertaken solely in the light of the fundamental rights guaranteed by the Charter (see, to that effect, judgment of 15 February 2016 in N., C‑601/15 PPU, EU:C:2016:84, paragraph 46 and the case-law cited).
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35 In view of all the circumstances set out above it appears, on the one hand, that various factors known to the institutions were in any event such as to raise doubts as to the appropriateness of Sri Lanka as a reference country and, on the other hand, that the institutions did not make a serious or sufficient attempt to determine whether Taiwan could be considered as an appropriate reference country.
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22. As the Court has consistently held, and as the Court of First Instance indeed recalled in paragraph 25 of the judgment under appeal, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. Thus, in order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered (see, inter alia, Joined Cases C-468/01 P to C-472/01 P Procter & Gamble v OHIM [2004] ECR I-5141, paragraph 44, and Case C-136/02 P Mag Instrument v OHIM [2004] ECR I-0000, paragraph 20).
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20. As the Court has consistently held, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. Thus, in order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered (see, in relation to a word mark, Case C-104/00 P DKV v OHIM [2002] ECR I-7561, paragraph 24, and, in relation to a three-dimensional mark constituted by the shape of the goods themselves, Joined Cases C-468/01 P to C-472/01 P Procter & Gamble v OHIM [2004] ECR I-0000, paragraph 44).
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40
Article 1(2) of Decision 2011/695, as clarified by recital 9 of that decision, provides that the terms of reference of the hearing officer must be framed in such a way as to safeguard the effective exercise of procedural rights throughout proceedings before the Commission pursuant to Articles 101 TFEU and 102 TFEU, in particular the right to be heard.
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27. However, where the issuer of the invoice has, in sufficient time, wholly eliminated the risk of any loss of tax revenue, the principle of the neutrality of VAT requires that VAT which has been improperly invoiced can be corrected without such adjustment being made conditional by the Member States upon the good faith of the issuer of the relevant invoice. The adjustment cannot be dependent upon the discretion of the tax authority (see Schmeink & Cofreth and Strobel , paragraphs 58 and 68, and Stadeco , paragraphs 37 and 38).
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58 In such circumstances, where the issuer of the invoice has in sufficient time wholly eliminated the risk of any loss in tax revenues, the principle of the neutrality of VAT requires that VAT which has been improperly invoiced can be adjusted without such adjustment being made conditional by the Member States upon the issuer of the relevant invoice having acted in good faith.
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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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55. T he Court has already held that the provisions on citizenship of the Union are applicable as soon as they enter into force. They must for that reason be applied to the present effects of situations arising previously ( D’Hoop , paragraph 25).
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25 The provisions on citizenship of the Union are applicable as soon as they enter into force. Therefore they must be applied to the present effects of situations arising previously (see, to that effect, Case C-195/98 sterreichischer Gewerkschaftsbund [2000] ECR I-10497, paragraphs 54 and 55, and Case C-290/00 Duchon [2002] ECR I-0000, paragraphs 43 and 44).
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27 It follows that, because of the risk of detracting from the objective of Directive 76/207, a scheme of benefits cannot be excluded from the scope of the directive solely because, formally, it is part of a national social security system.
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108
In that respect, the Court has had occasion to rule that the exception in the first paragraph of Article 51 TFEU does not extend to certain activities that are ancillary or preparatory to the exercise of official authority (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraph 22; of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 38; of 30 March 2006, Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, paragraph 47; of 29 November 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraph 38; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, judgment of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraphs 21 and 22; of 29 November 2007, Commission v Austria, C‑393/05, EU:C:2007:722, paragraphs 36 and 42; of 29 Novembre 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraphs 38 and 44; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraphs 36 and 41), powers of enforcement (see, to that effect, inter alia, judgment of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 37) or powers of coercion (see, to that effect, judgment of 30 September 2003, Anker and Others, C‑47/02, EU:C:2003:516, paragraph 61, and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 44).
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36. Thus, according to settled case-law, the derogation for which that article provides must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Reyners , paragraph 45; Case C‑42/92 Thijssen [1993] ECR I‑4047, paragraph 8; and Case C‑283/99 Commission v Italy [2001] ECR I‑4363, paragraph 20), 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 , paragraph 22; Commission v Austria , paragraph 36; and Commission v Germany , paragraph 38).
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46. The public interest taken into account in the examination of each of those grounds for refusal may, or even must, reflect different considerations, depending upon which ground for refusal is at issue.
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10
In that regard, it must be recalled that, under Article 83 of the Court’s Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court (judgment of 22 June 2016, DK Recycling und Roheisen v Commission, C‑540/14 P, EU:C:2016:469, paragraph 28).
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28
However, the Court may, under Article 83 of its Rules of Procedure, at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court.
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40 That said, it does not appear that the Italian State has waived its power to make decisions of last resort or to review implementation of the tariff. This is confirmed by the circumstances mentioned in paragraph 10 above.
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34. As the referring court points out, it is for it to assess the facts which are placed before it and to determine whether action constituting an abusive practice has taken place in the case before it. The Court, when giving a preliminary ruling, may however provide clarification designed to give the referring court guidance in its interpretation (see inter alia, to this effect, judgments in Halifax and Others , C‑255/02, EU:C:2006:121, paragraphs 76 and 77, and Part Service , C‑425/06, EU:C:2008:108, paragraphs 54 to 56).
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76. It is for the national court to verify in accordance with the rules of evidence of national law, provided that the effectiveness of Community law is not undermined, whether action constituting such an abusive practice has taken place in the case before it (see Case C-515/03 Eichsfelder Schalchtbetrieb [2005] ECR I-0000, paragraph 40).
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59 Next, as the United Kingdom Government was right to point out, the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men in the workforce able to satisfy the requirement of two years' employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. It is not sufficient to consider the number of persons affected, since that depends on the number of working people in the Member State as a whole as well as the percentages of men and women employed in that State.
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41
It is true that, both the principle of legal certainty and the need to secure the full implementation of directives in law and not only in fact require that all Member States reproduce the rules of the directive concerned within a clear, precise and transparent framework providing for mandatory legal provisions (judgments of 16 November 2000, Commission v Greece, C‑214/98, EU:C:2000:624, paragraph 23, and of 14 January 2010, Commission v Czech Republic, C‑343/08, EU:C:2010:14, paragraph 40).
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23 In paragraphs 22 and 25 of Commission v Netherlands the Court held that both the principle of legal certainty and the need to secure the full implementation of directives in law and not only in fact require that Member States reproduce the rules of the directive in question in mandatory legal provisions.
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41
It should also be observed that the grounds for justification listed in Article 36 TFUE apply exclusively to measures having equivalent effect to a quantitative restriction and not to charges having equivalent effect to a customs duty (see, inter alia, judgment of 14 June 1988, Dansk Denkavit, 29/87, EU:C:1988:299, paragraph 32).
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13. Furthermore, whilst Article 234 EC does not make a reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers a question for a preliminary ruling (see Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraph 12), it follows none the less from that article that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see orders in Case 138/80 Borker [1980] ECR 1975, paragraph 4, and in Case 318/85 Greis Unterweger [1986] ECR 955, paragraph 4; and judgments in Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9; Salzmann , paragraph 14; Lutz , paragraph 13; and Case C-165/03 Längst [2005] ECR I-5637, paragraph 25).
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25. In that regard, it must be pointed out that, according to the settled case-law of the Court, it follows from Article 234 EC that national courts or tribunals may refer a question to the Court only if there is a case pending before them and if they are called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, in particular, the orders in Case 138/80 Borker [1980] ECR 1975, paragraph 4, Case 318/85 Greis Unterweger [1986] ECR 955, paragraph 4, and Holto , cited above, paragraph 17).
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81. It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights.
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52. Furthermore, the Court has held that, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as influenced by that aid ( Cassa di Risparmio di Firenze and Others , paragraph 141 and the case-law cited).
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141. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra‑Community trade, the latter must be regarded as affected by that aid ( Italy v Commission , cited in paragraph 131 above, paragraph 115, and Unicredito Italiano , paragraph 56, and the case-law there cited).
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23 That argument cannot be accepted. The aim of a benefit such as that at issue is to meet family expenses within the meaning of Article 1(u)(i) of Regulation No 1408/71.
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21 As the Court ruled in its judgment in Defrenne, the principle of equal pay is one of the foundations of the Community (paragraph 12) and Article 119 produces direct effects by creating rights which national courts must safeguard (paragraph 24). Article 119 being mandatory in nature, the prohibition of discrimination between men and women applies not only to the acts of public authorities but also to contracts between private individuals and to all collective agreements intended to regulate paid employment (paragraph 39).
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39 IN FACT , SINCE ARTICLE 119 IS MANDATORY IN NATURE , THE PROHIBITION ON DISCRIMINATION BETWEEN MEN AND WOMEN APPLIES NOT ONLY TO THE ACTION OF PUBLIC AUTHORITIES , BUT ALSO EXTENDS TO ALL AGREEMENTS WHICH ARE INTENDED TO REGULATE PAID LABOUR COLLECTIVELY , AS WELL AS TO CONTRACTS BETWEEN INDIVIDUALS .
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14 In this regard, it is sufficient to point out that a system requiring prior import authorizations constitutes a measure which is disproportionate in relation to the objective of protecting the health and life of humans and animals . It is clear from the Court' s judgment in Case 124/81 Commission v United Kingdom, cited above, that a Member State may adopt measures less restrictive than a system of prior import authorizations in order to protect those interests, by confining itself to obtaining the information which is of use to it, for example, by means of declarations signed by the importers, accompanied if necessary by the appropriate certificates issued by the exporting Member State .
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57. Second, the first subparagraph of Article 8(4), which authorises a Member State to refuse to recognise the validity of a driving licence obtained in another Member State by a person who is, in the first Member State’s territory, the subject of a measure restricting, suspending, withdrawing or cancelling a licence, constitutes a derogation from the general principle of mutual recognition of driving licences and is, therefore, to be interpreted strictly (see, to that effect, Kapper , paragraphs 70 and 72, and the orders in Halbritter , paragraph 35, and Kremer , paragraph 28).
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70. Inasmuch as the first paragraph of Article 8(4) of Directive 91/439 permits a Member State to refuse to recognise the validity of any driving licence issued by another Member State if the holder is, in the first Member State’s territory, subject to a measure which restricts, suspends, withdraws or cancels the right to drive, it constitutes an exception to the general principle of the mutual recognition of driving licences issued by the Member States laid down in Article 1(2) of the Directive.
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10 MOREOVER THE WORKER WILL NORMALLY RECEIVE THE BENEFITS LEGALLY PRESCRIBED NOT BY REASON OF THE EMPLOYER' S CONTRIBUTION BUT SOLELY BECAUSE THE WORKER FULFILS THE LEGAL CONDITIONS FOR THE GRANT OF BENEFITS .
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42
Article 6(1) of Directive 2004/38 provides that Union citizens have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport and, under Article 14(1) of that directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State (judgments in Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 39, and Dano, C‑333/13, EU:C:2014:2358, paragraph 70).
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39. First, for periods of residence of up to three months, Article 6 of Directive 2004/38 limits the conditions and formalities of the right of residence to the requirement to hold a valid identity card or passport and, under Article 14(1) of the directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host 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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33. As the Court has previously held, it follows from the definition in Article 1(a) of Directive 92/50 that a public service contract within the meaning of that directive involves consideration which is paid directly by the contracting authority to the service provider ( Parking Brixen , paragraph 39). Accordingly, a royalty of the type for which the agreements at issue provide is capable of characterising a contract as one for pecuniary interest within the meaning of Article 1(a), and accordingly as a public contract (see, as to the payment of a fixed sum per dustbin or container by a town to an enterprise with exclusive responsibility for the collection and treatment of waste, Case C‑29/04 Commission v Austria [2005] ECR I‑9705, paragraphs 8 and 32).
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8. On 15 September 1999, by means of a contract which was concluded for an unlimited period and came into force with retrospective effect from 1 July 1999, the town of Mödling transferred exclusive responsibility for the collection and treatment of its waste to AbfallgmbH. That contract stipulated the amount of the remuneration, namely a fixed sum per dustbin or container, which the town of Mödling was to pay to AbfallgmbH.
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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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34. Furthermore, in SCT Industri , the Court held, in connection with the recognition of a judgment which held that a transfer granted by the liquidator appointed in insolvency proceedings was invalid on the ground that the liquidator had no power to dispose of the assets transferred, that such a matter is covered by the concept of bankruptcy or winding-up for the purposes of Article 1(2)(b) of Regulation No 44/2001 (see, to that effect, SCT Industri , paragraph 33).
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33. In the light of all of the foregoing considerations, the answer to the question referred is that the exception provided for in Article 1(2)(b) of Regulation No 44/2001 must be interpreted as applying to a judgment of a court of Member State A regarding registration of ownership of shares in a company having its registered office in Member State A, according to which the transfer of those shares was to be regarded as invalid on the ground that the court of Member State A did not recognise the powers of a liquidator from a Member State B in the context of insolvency proceedings conducted and closed in Member State B.
Costs
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56. It is true that, in certain circumstances, such as the loss of products, their sale at a loss or unlawful sale at a price different from the retail price indicated on the tax stamps, the manufacturer may be obliged to pay an amount of VAT which is higher than that which would have resulted from the application of the ordinary Community system for levying VAT.
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40. If the court making the reference, after carrying out that assessment, should nevertheless make a finding of anti-competitive effects due to Post Danmark’s actions, it should be recalled that it is open to a dominant undertaking to provide justification for behaviour that is liable to be caught by the prohibition under Article 82 EC (see, to this effect, Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 184; Joined Cases C‑241/91 P and C‑242/91 P RTE and ITP v Commission [1995] ECR I‑743, paragraphs 54 and 55; and TeliaSonera Sverige , paragraphs 31 and 75).
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55 Second, there was no justification for such refusal either in the activity of television broadcasting or in that of publishing television magazines (RTE judgment, paragraph 73, and ITP judgment, paragraph 58).
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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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9AS TO THE SECOND QUESTION , IN ITS AFORESAID JUDGMENT OF 16 MARCH 1978 IN CASE 117/77 THE COURT HELD THAT , ' ' THE DUTY LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) TO GRANT THE AUTHORIZATION REQUIRED UNDER ARTICLE 22 ( 1 ) ( C ) COVERS BOTH CASES WHERE THE TREATMENT PROVIDED IN ANOTHER MEMBER STATE IS MORE EFFECTIVE THAN THAT WHICH THE PERSON CONCERNED CAN RECEIVE IN THE MEMBER STATE WHERE HE RESIDES AND THOSE IN WHICH THE TREATMENT IN QUESTION CANNOT BE PROVIDED ON THE TERRITORY OF THE LATTER STATE ' ' .
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22THE DUTY LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) TO GRANT THE AUTHORIZATION REQUIRED UNDER ARTICLE 22 ( 1 ) ( C ) COVERS BOTH CASES WHERE THE TREATMENT PROVIDED IN ANOTHER MEMBER STATE IS MORE EFFECTIVE THAN THAT WHICH THE PERSON CONCERNED CAN RECEIVE IN THE MEMBER STATE WHERE HE RESIDES AND THOSE IN WHICH THE TREATMENT IN QUESTION CANNOT BE PROVIDED ON THE TERRITORY OF THE LATTER STATE .
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61. À cet égard, si la protection de la santé publique constitue un intérêt légitime de nature à justifier, en principe, une restriction à une liberté fondamentale garantie par le traité, telle que la libre circulation des marchandises, il n’en demeure pas moins que de telles restrictions ne peuvent être justifiées que si elles sont propres à garantir la réalisation de l’objectif poursuivi et ne vont pas au‑delà de ce qui est nécessaire pour qu’il soit atteint (arrêts du 14 octobre 2004, Omega, C‑36/02, Rec. p. I‑9609, point 36; du 11 décembre 2007, International Transport Workers’ Federation et Finnish Seamen’s Union, C‑438/05, non encore publié au Recueil, point 75, et Dynamic Medien, précité, point 42).
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23. Since Directive 2001/29 serves to implement in the European Union its obligations under, inter alia, the CT and, according to settled case-law, European Union legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union, the notion of ‘distribution’, contained in Article 4(1) of that directive, must be interpreted in accordance with Article 6(1) of the CT (see, to that effect, Case C-456/06 Peek & Cloppenburg [2008] ECR I-2731, paragraphs 29 to 32).
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31. It is common ground that, as recital 15 in the preamble to Directive 2001/29 makes clear, that directive is intended to implement at Community level the Community’s obligations under the CT and the PPT. In those circumstances, the concept of distribution in Article 4(1) of that directive must be interpreted, as far as is possible, in the light of the definitions given in those Treaties.
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38. Il découle également de la même disposition que le Tribunal est appelé à apprécier la légalité de la décision de la chambre de recours de l’OHMI en contrôlant l’application du droit communautaire effectuée par celle-ci eu égard, notamment, aux éléments de fait qui ont été soumis à ladite chambre (voir, en ce sens, arrêts du 18 juillet 2006, Rossi/OHMI, C‑214/05 P, Rec. p. I‑7057, point 50; OHMI/Kaul, précité, point 54, et du 26 avril 2007, Alcon/OHMI, C‑412/05 P, non encore publié au Recueil, point 44).
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28. It is also settled case-law that the need to provide an interpretation of European Union law which will be of use to the national court makes it necessary for that court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of European Union law and considers it necessary to refer a question to the Court for a preliminary ruling (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraph 40).
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40. With regard to the information that must be provided to the Court in connection with a reference for a preliminary ruling, it should be noted that that information does not serve only to enable the Court to provide answers which will be of use to the national court; it must also enable the Governments of the Member States, and other interested parties, to submit observations in accordance with Article 23 of the Statute of the Court of Justice. For those purposes, according to settled case-law, it is firstly necessary that the national court should define the factual and legislative context of the questions which it is asking or, at the very least, explain the factual circumstances on which those questions are based. Secondly, the order for reference must set out the precise reasons why the national court is unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. In consequence, it is essential that the national court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link which it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (see Placanica and Others , paragraph 34 and the case-law cited).
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89. L’analyse de ces définitions met en évidence l’étendue du champ d’application couvert par la notion d’activités économiques ainsi que le caractère objectif de cette notion, en ce sens que l’activité est considérée en elle-même, indépendamment de ses buts ou de ses résultats (voir, notamment, arrêts Commission/Pays-Bas, précité, point 8; du 12 septembre 2000, Commission/Grèce, précité, point 26, ainsi que du 21 février 2006, University of Huddersfield, C‑223/03, Rec. p. I‑1751, point 47 et jurisprudence citée). Une activité est ainsi, en général, qualifiée d’économique lorsqu’elle présente un caractère permanent et est effectuée contre une rémunération perçue par l’auteur de l’opération (arrêt du 13 décembre 2007, Götz, C‑408/06, Rec. p. I‑11295, point 18).
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32. It follows that, while the length of the preliminary examination procedure can constitute an indication that the Commission may have had doubts regarding the compatibility of the aid in question with the common market, its length cannot of itself lead to the conclusion that the Commission should have initiated the formal investigation procedure (see, to that effect, Case 84/82 Germany v Commission [1984] ECR 1451, paragraphs 14 to 17, and Belgium v Deutsche Post and DHL International , paragraph 81).
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15 IN THE SECOND PLACE , IT MUST BE POINTED OUT THAT BY REASON OF THOSE VERY NEGOTIATIONS 16 MONTHS ELAPSED BETWEEN NOTIFICATION OF THE PLAN AND THE FAVOURABLE DECISION OF THE COMMISSION ; THAT WELL EXCEEDS THE PERIOD NORMALLY REQUIRED FOR A PRELIMINARY EXAMINATION UNDER ARTICLE 93 ( 3 ).
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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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92
They claim that an analysis of the economic and legal context of which the agreement at issue forms part is needed to determine whether or not an infringement has as its object the restriction of competition (judgments of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraphs 36 and 48, and of 26 November 2015, Maxima Latvija, C‑345/14, EU:C:2015:784, paragraph 16).
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36. In order to determine whether an agreement involves a restriction of competition ‘by object’, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part (see GlaxoSmithKline Services and Others v Commission and Others , paragraph 58; Football Association Premier League and Others , paragraph 136; and Pierre Fabre Dermo-Cosmétique , paragraph 35). When determining that context, it is also appropriate to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see Expedia , paragraph 21 and the case-law cited).
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42. Toutefois, cette répartition de la compétence fiscale ne permet pas aux États membres d’appliquer des mesures contraires aux libertés de circulation garanties par le traité FUE. En effet, en ce qui concerne l’exercice du pouvoir d’imposition ainsi réparti dans le cadre de conventions bilatérales préventives de la double imposition, les États membres sont tenus de se conformer aux règles de l’Union (arrêts précités de Groot, point 94; Renneberg, points 50 et 51, ainsi que Beker, points 33 et 34).
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34. It should be borne in mind that, as the Court has held previously, it is apparent from the very wording of Clause 2(1) of the Framework Agreement that the scope of the Framework Agreement is conceived in broad terms, covering generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. Moreover, the definition of ‘fixed-term workers’ for the purposes of the Framework Agreement, set out in clause 3(1), encompasses all workers without drawing a distinction according to whether their employer is in the public or private sector (Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 56).
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56. On the contrary, first, as is apparent from the very wording of clause 2(1) of the Framework Agreement, the scope of the Framework Agreement is conceived in broad terms, covering generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. In addition, the definition of ‘fixed-term workers’ for the purposes of the Framework Agreement, set out in clause 3(1), encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector.
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S’agissant du grief tiré de l’atteinte au droit de propriété et de la violation du principe de proportionnalité, il importe
de rappeler que le droit de propriété n’est pas une prérogative absolue et que son exercice peut faire l’objet de restrictions
justifiées par des objectifs d’intérêt général poursuivis par l’Union (voir arrêt du 16 novembre 2011, Bank Melli Iran/Conseil,
C‑548/09 P, EU:C:2011:735, point 113).
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18. Discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations ( Schumacker , paragraph 30, and Case C‑391/97 Gschwind [1999] ECR I‑5451, paragraph 21).
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21 It is settled law that discrimination arises through the application of different rules to comparable situations or the application of the same rule to different situations.
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44. First, it has to be stated that any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 230 EC for a declaration that it is void (see, inter alia, Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 62, and Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9).
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55
Consequently, that argument must be rejected as inadmissible. According to the settled case-law of the Court of Justice, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, would in effect allow that party to bring before the Court of Justice a wider case than that heard by the General Court (see, to that effect, judgments in Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 111, and Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraph 35).
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35. As regards the second ground of appeal on which the appellant relies – and to the extent that the appellant complains that the General Court infringed the presumption of innocence guaranteed by Article 48 of the Charter in holding that it could be held liable for the infringement committed by its subsidiary, Sachsa, since it held all the shares in it – it is sufficient to note that, according to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, although it could have done so, would in effect allow that party to bring before the Court a wider case than that heard by the General Court. In an appeal, the Court’s jurisdiction is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it.
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77. Il résulte d’une jurisprudence constante qu’un État membre ne saurait exciper de situations de son ordre interne pour justifier le non-respect des obligations et des délais résultant du droit de l’Union (arrêt Commission/Belgique, C-421/12, EU:C:2014:2064, point 43).
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44. According to the case-law of the Court, failure to observe the obligation to notify constitutes a procedural defect in the adoption of the technical regulations concerned, and renders those technical regulations inapplicable and therefore unenforceable against individuals (see, in particular, CIA Security International , paragraph 54, and Lemmens , paragraph 33). Individuals may rely on that inapplicability before the national court which must decline to apply a national technical regulation which has not been notified in accordance with Directive 98/34 (see, in particular, CIA Security International , paragraph 55, and Sapod Audic , paragraph 50).
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33 In paragraphs 48 and 54 of that judgment, the Court pointed out that the obligation to notify is essential for achieving such Community control and went on to state that the effectiveness of such control will be that much greater if the Directive is interpreted as meaning that breach of the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable, and thus unenforceable against individuals.
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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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89. Furthermore, since Article 30 EC contains an exception, to be interpreted strictly, to the rule of free movement of goods within the Community, it is for the national authorities which invoke it to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to give effective protection to the interests referred to in that provision and, in particular, that the marketing of the products in question poses a real risk to public health ( Sandoz , paragraph 22; Van Bennekom , paragraph 40; Commission v Denmark , paragraph 46; and Case C-24/00 Commission v France , paragraph 53).
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46. Furthermore, since Article 30 EC provides for an exception, to be interpreted strictly, to the rule of free movement of goods within the Community, it is for the national authorities which invoke it to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to give effective protection to the interests referred to in that provision and, in particular, that the marketing of the products in question poses a real risk to public health (see, to that effect, Sand oz , paragraph 22; Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 40; Beer purity law , cited above, paragraph 46; and Case C-228/91 Commission v Italy [1993] ECR I-2701, paragraph 27).
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80. In the area of electronic communications networks and services, those principles were implemented by the NCRF.
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28. Thus it is apparent from the case-law of the Court that the objective of reducing the cost of medical care and making that care more accessible to individuals is common to both the exemption provided for in Article 13A(1)(b) of the Sixth Directive and that in letter (c) of the same provision (see Case C‑76/99 Commission v France [2001] ECR I‑249, paragraph 23; Kügler , paragraph 29; and Dornier , paragraph 43). 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 (see Kügler , paragraph 30, and Dornier , paragraph 44).
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30 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. It follows that that principle would be disregarded if the possibility of relying on the exemption which is envisaged for the provision of medical care referred to in Article 13(A)(1)(c) were dependent on the legal form in which the taxable person carries on his activity (see, to that effect, Gregg, cited above, paragraph 20).
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87. Ainsi, les propositions de la Commission ne sauraient lier la Cour et ne constituent qu’une base de référence utile. De même, des lignes directrices telles que celles contenues dans les communications de la Commission ne lient pas la Cour, mais contribuent à garantir la transparence, la prévisibilité et la sécurité juridique de l’action menée par cette institution (arrêt Commission/Grèce, C‑369/07, EU:C:2009:428, point 112 et jurisprudence citée).
Sur l’astreinte
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37 It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to 24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19).
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19 As regards the criterion of good faith, the Court found first of all (in paragraph 42) that Article 9(a) of Council Directive 86/378/EEC of 24 July 1986, on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40), provided for the possibility of deferring the compulsory implementation of the principle of equal treatment with regard to the determination of pensionable age, as did the exception provided for in Article 7(1)(a) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).
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94. That recital indicates the Commission's choice as to the addressee of the contested decision but contains no reasons whatsoever for that decision.
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30
First of all, a request for clarification of a tender, which may not be made until after the contracting authority has looked at all the tenders, must, as a general rule, be sent in an equivalent manner to all undertakings which are in the same situation and must relate to all sections of the tender which require clarification (see judgments of 29 March 2012, SAG ELV Slovenskoand Others, C‑599/10, EU:C:2012:191, paragraphs 42 to 44, and of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraphs 34 and 35).
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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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48. As regards, next, the principle of effectiveness, it must be recalled that, from the point of view of the analysis required by the case-law cited at paragraph 38 above, the question whether a national procedural provision renders the exercise of an individual’s rights under the European Union legal order impossible in practice or excessively difficult must be assessed taking into consideration, as appropriate, the principles which lie at the basis of the national legal system concerned, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see inter alia, to that effect, Peterbroeck , paragraph 14, and Pontin , paragraph 47).
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90. According to settled case-law, complaints directed against a ground included in the judgment purely for the sake of completeness cannot lead to the judgment being set aside and are therefore nugatory (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 148).
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148. However, that is a complaint directed against a ground included in the judgment purely for the sake of completeness which cannot lead to the judgment being set aside and is therefore nugatory (see, in particular, Case C-184/01 P Hirschfeldt v EEA [2002] ECR I-10173, paragraph 48 and the case-law cited).
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30. The notion of "genuine use" also appears in Articles 15 and 50 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) as a prerequisite for revocation of the rights conferred by such a trade mark.
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13 It is also settled case-law that the taxable amount for the supply of goods or services is represented by the consideration actually received for them. That consideration is thus the subjective value, that is to say, the value actually received, and not a value estimated according to objective criteria (see judgments in Case 154/80 Coöperatieve Aardappelenbewaarplaats [1981] ECR 445, paragraph 13; Case 230/87 Naturally Yours Cosmetics [1988] ECR 6365, paragraph 16; Case C-126/88 Boots Company [1990] ECR I-1235, paragraph 19; Case C-38/93 Glawe [1994] ECR I-1679, paragraph 8; Case C-33/93 Empire Stores [1994] ECR I-2329, paragraph 18, and Case C-288/94 Argos Distributors [1996] ECR I-5311, paragraph 16).
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16 According to the Court' s settled case-law, the taxable amount for the supply of goods or services is represented by the consideration actually received for them. That consideration is thus the subjective value, that is to say, the value actually received, in each specific case, and not a value estimated according to objective criteria (see Case 154/80 Staatssecretaris Van Financiën v Cooperatieve Aardappelenbewaarplats [1981] ECR 445; Case 230/87 Naturally Yours Cosmetics [1988] ECR 6365; Case C-126/88 Boots v Commissioners of Customs and Excise [1990] ECR I-1235; and Case C-38/93 Glawe [1994] ECR I-1679).
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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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38. As regards the provisions of European Union law which may be the subject of a ruling of the Court of Justice under Article 267 TFEU, it must be recalled that the Court of Justice has jurisdiction to give a preliminary ruling on the validity and interpretation of all acts of the institutions of the European Union without exception (see Case C‑322/88 Grimaldi [1989] ECR 4407, paragraph 8, and Case C‑11/05 Friesland Coberco Dairy Foods [2006] ECR I‑4285, paragraphs 35 and 36).
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35. Article 234 EC provides that the Court has jurisdiction to give preliminary rulings concerning the validity and interpretation of acts of the Community institutions and the European Central Bank.
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29 It would be otherwise if that rule were withdrawn from the domestic legal system by a decision subsequent to the date of accession but with retroactive effect from before that date, thereby eliminating the provision in question as regards the past.
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23 It should be borne in mind that, according to settled case-law of the Court, the right to a refund of charges levied in a Member State in breach of rules of Community law is the complement of the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of domestic charges, as interpreted by the Court of Justice (San Giorgio, cited above, paragraph 12; Case 309/85 Barra v Belgium and Another [1998] ECR 355, paragraph 17, and Case C-62/93 BP Supergaz v Greek State [1995] ECR I-1883, paragraph 40). The Member State is therefore required in principle to repay charges levied in breach of Community law (Joined Cases C-192/95 to C-218/95 Comateb and Others v Directeur Général des Douanes et Droits Indirects [1997] ECR I-165, paragraph 20).
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20 The first point to note is that entitlement to the repayment of charges levied by a Member State in breach of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting such charges (San Giorgio, cited above, paragraph 12). The Member State is therefore in principle required to repay charges levied in breach of Community law.
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38 The arising of the right to deduct the VAT paid on the first investment expenditure is thus in no way dependent upon formal recognition of the status of taxable person by the tax authority. The only effect of that recognition is that such status, once recognised, cannot, save in situations of fraud or abuse, be withdrawn from the taxpayer with retrospective effect, without infringing the principles of the protection of legitimate expectations and legal certainty.
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24. In the absence of a definition in the Treaty of ‘movement of capital’ for the purposes of Article 56(1) EC, the Court has previously recognised the nomenclature annexed to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [an article repealed by the Treaty of Amsterdam] (OJ 1988 L 178, p. 5) as having indicative value, even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty were replaced by Articles 73B to 73G of the EC Treaty, now Articles 56 EC to 60 EC), subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see, in particular, Case C‑513/03 van Hilten‑van der Heijden [2006] ECR I‑1957, paragraph 39; Centro di Musicologia Walter Stauffer , paragraph 22; and Case C‑11/07 Eckelkamp [2008] ECR I‑0000, paragraph 38). Gifts and endowments are listed under Heading XI, entitled ‘Personal capital movements’ in Annex I to Directive 88/361.
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22. The Treaty does not define the notions of ‘capital movements’ or ‘payments’. However, it is established case-law that, in as much as Article 73b of the EC Treaty substantially reproduces the contents of Article 1 of Directive 88/361, and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty having been replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature in respect of ‘movements of capital’ annexed to Directive 88/361 still has the same indicative value, for the purposes of defining the notion of capital movements, as it did before the entry into force of those provisions, subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see, inter alia, Case C-222/97 Trummer and Mayer [1999] ECR I‑1661, paragraph 21, Joined Cases C-515/99, C-519/99 to C‑524/99 and C‑526/99 to C-540/99 Reisch and Others [2002] ECR I-2157, paragraph 30, and Van Hilten-van der Heijden , paragraph 39).
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24 Similarly, neither the alleged trade usage nor any divergent application of the rules in certain Member States can influence the interpretation of the CCT which is based on the wording of the tariff headings.
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52. Furthermore it is settled case-law that the basic regulation allows the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various agricultural sectors (see, inter alia, Case 327/85 Netherlands v Commission [1988] ECR 1065, paragraph 24; Case C-197/90 Italy v Commission [1992] ECR I-1, paragraph 38; and Case C-118/99 France v Commission [2002] ECR I‑747, paragraph 38) and requires it to refuse financing of expenditure when it finds that irregularities have occurred (Case C-157/00 Greece v Commission [2003] ECR I-153, paragraph 44).
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24 WITH REGARD TO THE ASSESSMENT OF THIS SUBMISSION, IT MUST BE POINTED OUT THAT THE COURT HAS CONSISTENTLY HELD ( JUDGMENT OF 7 FEBRUARY 1979 IN CASE 11/76 NETHERLANDS V COMMISSION (( 1979 )) ECR 245 ) THAT THE PROVISIONS OF ARTICLES 2 AND 3 OF REGULATION NO 729/70 PERMIT THE COMMISSION TO CHARGE TO THE EAGGF ONLY SUMS PAID IN ACCORDANCE WITH THE RULES LAID DOWN IN THE VARIOUS SECTORS OF AGRICULTURAL PRODUCTION WHILE LEAVING THE MEMBER STATES TO BEAR THE BURDEN OF ANY OTHER SUM PAID, AND IN PARTICULAR ANY AMOUNTS WHICH THE NATIONAL AUTHORITIES WRONGLY BELIEVED THEMSELVES AUTHORIZED TO PAY IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKETS .
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33 Such a right to information constitutes a necessary prerequisite for determining whether a Community-scale undertaking or group of undertakings exists, which is itself a condition precedent for the setting-up of a European works council or of a transnational procedure for informing and consulting workers.
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17 It must be borne in mind in this connection that, according to settled case-law, a retirement pension paid under an occupational scheme set up under a collective agreement constitutes consideration paid by the employer to the employee in respect of his employment and consequently falls within the scope of Article 119 of the Treaty, whether it replaces a statutory scheme or is supplementary to it (see, in particular, Case 170/84 Bilka [1986] ECR 1607, paragraphs 20 and 22; Case C-262/88 Barber [1990] ECR I-1889, paragraph 28; and Case C-110/91 Moroni [1993] ECR I-6591, paragraph 15).
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28 It must therefore be concluded that, unlike the benefits awarded by national statutory social security schemes, a pension paid under a contracted-out scheme constitutes consideration paid by the employer to the worker in respect of his employment and consequently falls within the scope of Article 119 of the Treaty .
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21 With regard to the substantive nature of the failure to fulfil obligations, it has consistently been held that the question whether a Member State has failed to fulfil its obligations must be determined solely by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26). Further, a Member State cannot plead provisions, practices or situations within its internal legal order in order to justify its failure to fulfil obligations under Community law.
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31
Since the European Union’s own resources, by virtue of Council Decision 2014/335/EU, Euratom of 26 May 2014 on the system of own resources of the European Union (OJ 2014 L 168, p. 105), include revenue from the application of a uniform rate to the harmonised VAT assessment bases determined in accordance with EU rules, there is a direct link between the collection of VAT revenue in compliance with the EU law applicable and the availability to the EU budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 26, and the Taricco judgment, paragraph 38).
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26. Furthermore, Article 325 TFEU obliges the Member States to counter illegal activities affecting the financial interests of the European Union through effective deterrent measures and, in particular, obliges them to take the same measures to counter fraud affecting the financial interests of the European Union as they take to counter fraud affecting their own interests (see, to this effect, Case C-367/09 SGS Belgium and Others [2010] ECR I-10761, paragraphs 40 to 42). Given that the European Union’s own resources include, as provided in Article 2(1) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17), revenue from application of a uniform rate to the harmonised VAT assessment bases determined according to European Union rules, there is thus a direct link between the collection of VAT revenue in compliance with the European Union law applicable and the availability to the European Union budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second (see, to this effect, Case C-539/09 Commission v Germany [2011] ECR I-11235, paragraph 72).
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38. Secondly, so far as concerns the condition as to the aims of the national measure in issue, there is no doubt that the VGVG pursues public-interest objectives which are such as to justify restrictions on the free movement of capital.
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69. Interest paid to an undertaking in consideration of bank deposits or placements in securities such as Treasury notes or certificates of deposit likewise cannot be excluded from the scope of VAT, since the interest paid does not arise from the simple ownership of the asset but constitutes the consideration for making capital available for the benefit of a third party (see, to that effect, Régie dauphinoise , paragraph 17). It follows from the preceding paragraph that an undertaking acts as a taxable person if it thus uses funds forming part of its assets.
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17 Unlike the receipt of dividends by a holding company, in respect of which, in Case C-333/91 Sofitam [1993] I-3513, paragraph 13, the Court held that, not being consideration for an economic activity, it did not fall within the scope of VAT, interest received by a property management company on placements made for its own account of sums paid by co-owners or lessees cannot be excluded from the scope of VAT, since the interest does not arise simply from ownership of the asset, but is the consideration for placing capital at the disposition of a third party.
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14 It must be observed that the principle of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision. The abovementioned judgment disposed only of the question whether, under the general rules applicable to the financing of intervention in the context of the common agricultural policy, the expenditure concerned was to be reimbursed by way of standard amounts or in full.
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20 The Court has consistently stated that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, in particular, Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14; Case 122/84 Scrivner [1985] ECR 1027, paragraphs 19 to 21; Case C-356/89 Newton [1991] ECR I-3017; and Case C-78/91 Hughes, cited above, paragraph 15). That list is exhaustive, so that a branch of social security not mentioned therein does not fall within that category even if it confers upon recipients a legally defined position entitling them to benefits (see, in particular, Case C-25/95 Otte [1996] ECR I-3745, paragraph 22).
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21 IT FOLLOWS THAT AN ALLOWANCE LIKE THE ONE AT ISSUE , BEING A GENERAL SOCIAL BENEFIT , CANNOT BE CLASSIFIED UNDER ONE OF THE BRANCHES OF SOCIAL SECURITY LISTED IN ARTICLE 4 ( 1 ) OF REGULATION NO 1408/71 AND THEREFORE DOES NOT CONSTITUTE A SOCIAL SECURITY BENEFIT WITHIN THE SPECIFIC MEANING OF THAT REGULATION .
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35. First, such rules must make provision for a procedure enabling economic operators to have a nutrient included on the national list of authorised substances. The procedure must be one which is readily accessible and can be completed within a reasonable time, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see to that effect Case C-344/90 Commission v France [1992] ECR I-4719, paragraph 9, and today ' s judgment in Case C-24/00 Commission v France [2004] ECR I-0000, paragraph 26).
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60. First, the French Republic stated at the hearing – and the point was not disputed by the Commission – that, like biomedical analyses, a significant majority of medicinal products are sold in pharmacies on medical prescription. Second, in Case C‑531/06 Commission v Italy (paragraph 90) and Apothekerkammer des Saarlandes and Others (paragraph 60), the Court held that medicinal products prescribed or used for therapeutic reasons may none the less prove seriously harmful to health if they are consumed unnecessarily or incorrectly. Thus, the existence of a prescription does not appear to prevent the risk for public health stemming from the incorrect or inappropriate dispensing of medicinal products.
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90. Given the particular nature of medicinal products and of the medicinal-product market, and as Community law currently stands, the Court’s findings in Commission v Greece cannot be transposed to the field of the retail supply of medicinal products. Unlike optical products, medicinal products prescribed or used for therapeutic reasons may none the less prove seriously harmful to health if they are consumed unnecessarily or incorrectly, without the consumer being in a position to realise that when they are administered. Furthermore, a medically unjustified sale of medicinal products leads to a waste of public financial resources which is not comparable to that resulting from unjustified sales of optical products.
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24 In the present case, no provision of Decision 88/408 precludes the Member States from entrusting to regional or local authorities the powers to derogate from the standard levels of fees, under the conditions and within the limits laid down by Article 2(2) of that decision.
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33 According to the criteria established by the case-law of the Court, only provisions which apply differently according to the sex of the persons concerned can be regarded as constituting discrimination directly based on sex (see, in particular, Case C-249/96 Grant v South-West Trains [1998] ECR I-621, paragraph 28).
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28 Since the condition imposed by the undertaking's regulations applies in the same way to female and male workers, it cannot be regarded as constituting discrimination directly based on sex.
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70. Having regard to the requirements of good administration and legal certainty and the principle of effective legal protection, it must be considered, on the one hand, that the Commission may only withdraw a decision to take no further action on a complaint regarding alleged unlawful aid in order to remedy illegality affecting that decision, and on the other hand, that the Commission cannot, after such withdrawal, pick up the procedure again at a stage earlier than the exact point at which the illegality found had occurred.
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47. The Court has consistently held that Article 1(2) of Directive 91/439 provides for mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes on Member States a clear and precise obligation, which leaves no room for discretion as to the measures to be adopted in order to comply with it (judgments in Case C‑230/97 Awoyemi [1998] ECR I‑6781, paragraphs 41 and 43; Case C‑246/00 Commission v Netherlands [2003] ECR I‑7485, paragraphs 60 and 61; and Kapper , paragraph 45; orders of 6 April 2006 in Case C‑227/05 Halbritter [2006] ECR I‑0049, and of 28 September 2006 in Case C‑340/05 Kremer [2006] ECR I‑0098).
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41 Furthermore, with regard to the question whether those provisions of the directive are sufficiently precise and unconditional to be capable of being relied upon by an individual in proceedings before a national court, it should be noted, in the first place, that Article 1(2) provides for mutual recognition, without any formality, of driving licences issued by Member States (see Skanavi and Chryssanthakopoulos, paragraph 26), and secondly, that Article 8(1) replaces simply with a right, conferred on the holder of a valid driving licence issued by one Member State where that person has taken up normal residence in another Member State, the obligation to exchange driving licences within the one-year period referred to in the first subparagraph of Article 8(1) of Directive 80/1263, since that obligation is deemed by the ninth recital in the preamble to Directive 91/439 to constitute an obstacle to the free movement of persons.
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81. By its very nature, that condition enables such a concentration to be avoided and is thus likely to lead to a more even distribution of pharmacies within a given geographical area.
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48. It must be borne in mind that, 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 must 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 C-287/98 Linster [2000] ECR I‑6917, paragraph 43, and Case C‑290/03 Barker [2006] ECR I‑3949, paragraph 40).
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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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32. Article 7(1) of the directive reserves the protection of the sui generis right to databases which meet a specific criterion, namely to those which show that there has been qualitatively and/or quantitatively a substantial investment in the obtaining, verification or presentation of their contents.
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46
Further, it must be recalled that, in accordance with the Court’s settled case-law, Article 107(1) TFEU covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the State. Therefore, even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ (see judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 37; of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 70; of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 35; and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 21).
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70. It is of little account that that designated company was at one and the same time the centralising body for the tax received, the manager of the monies collected and the recipient of part of those monies. The mechanisms provided for by the Law and, more specifically, the detailed accounts certified by an auditor, make it possible to distinguish those different roles and to monitor the use of the monies. It follows that as long as that designated company did not appropriate to itself the amount of NLG 400 million, at the time when it was freely able to do so, that amount remained under public control and therefore available to the national authorities, which is sufficient for it to be categorised as State resources (see, to that effect, Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 37).
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42. Furthermore, in the words of Article 6 EC ‘[e]nvironmental protection requirements must be integrated into the definition and implementation of the Community policies and activities’, a provision which emphasises the fundamental nature of that objective and its extension across the range of those policies and activities.
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85. Furthermore, it was not until at best two years after the delivery of the judgment in Case C‑99/02 Commission v Italy that the first coherent measures were adopted by the Italian Republic to remedy the difficulties of identifying and recovering the aid that had been declared unlawful and incompatible by Decision 2000/128, as is apparent from paragraphs 10 to 19 above and was admitted by the Italian Republic at the hearing. In particular, Decree-Law No 59 of 8 April 2008, intended to solve the procedural problem caused by the Italian courts’ suspension of the orders for recovery of the unlawful aid in question, was not enacted until after the period prescribed in the reasoned opinion of 1 February 2008 had expired, and provided only an imperfect solution to the delay in recovering the aid covered by that decision (see, by analogy, Case C‑304/09 Commission v Italy [2010] ECR I‑0000, paragraphs 40 to 42, and Case C‑305/09 Commission v Italy [2010] ECR I‑0000, paragraphs 38 to 40).
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39. However, the adoption of the measures mentioned in the preceding paragraph failed to remedy the delay in the recovery of the aid covered by Decision 2005/919. Indeed, they entered into force after the time-limits laid down by that decision had expired and their operation was obviously ineffective, since several years after the notification of Decision 2005/919, up to the date the present action was brought, and after the expiry of all the time-limits prescribed by that decision, some of the unlawful aid had not been recovered by the Italian Republic.
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21 It follows from all the foregoing considerations that recognition in one contracting State of a judgment delivered in default of appearance in another contracting State must be refused where the document which instituted the proceedings was not duly served on the defendant, even if the defendant had notice of the judgment and did not have recourse to the available legal remedies.
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46 However, when the German legislature adopted Paragraph 3 of the ZOK and the KVN then refused to enrol Mr Haim on the register of dental practitioners, the Court had not yet given judgment in the Vlassopoulou case, in paragraph 16 of which it held for the first time that 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 specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules.
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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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55. The phrase ‘to meet family expenses’ which is used in that provision is to be interpreted as referring, in particular, to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children ( Offermanns , paragraph 41, and Case C‑333/00 Maaheimo [2002] ECR I‑10087, paragraph 25).
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38. It should be recalled, to begin with, that Articles 28 and 28a of Regulation No 1408/71 lay down a ‘conflict rule’ enabling the determination, in relation to pensioners residing in a Member State other than the State responsible for payment of the pension, of the institution responsible for provision of the benefits mentioned in those provisions and the legislation applicable (see Case 69/79 Jordens-Vosters [1980] ECR 75, paragraph 12; Case C‑389/99 Rundgren [2001] ECR I‑3731, paragraphs 43 and 44; and van der Duin and ANOZ Zorgverzekeringen , paragraph 39).
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12 NOR DOES SUCH AN INTERPRETATION GATHER ANY SUPPORT FROM EITHER THE LETTER OR THE SPIRIT OF ARTICLES 19 AND 28 ( 1 ) OF REGULATION NO 1408/71 . ARTICLE 19 ( 1 ) ( A ) LAYS DOWN THAT BENEFITS IN KIND TO WHICH A WORKER RESIDING WITHIN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT STATE IS ENTITLED SHALL BE PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF RESIDENCE IN ACCORDANCE WITH LEGISLATION ADMINISTERED BY THAT INSTITUTION AS THOUGH HE WERE INSURED WITH IT AND ARTICLE 19 ( 2 ) EXTENDS THOSE RULES TO MEMBERS OF THE WORKER ' S FAMILY WHO ARE RESIDING IN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT STATE . ARTICLE 28 ( 1 ) EMBODIES THE SAME PRINCIPLE BY PROVIDING SIMILAR RULES AS REGARDS INTER ALIA RECIPIENTS OF A PENSION RESIDING IN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT STATE . THESE PROVISIONS ESSENTIALLY CONFINE THEMSELVES TO LAYING DOWN ' ' RULES OF CONFLICT ' ' ENABLING THE DETERMINATION , IN REGARD TO A WORKER OR RECIPIENTS OF A PENSION RESIDING IN A MEMBER STATE OTHER THAN THE COMPETENT STATE , OF THE INSTITUTION RESPONSIBLE FOR THE PAYMENT OF THE BENEFITS THEREIN MENTIONED AS WELL AS THE LAW APPLICABLE . IN THESE CIRCUMSTANCES , IT WOULD BE MISCONSTRUING THE LETTER AND THE SPIRIT OF ARTICLES 19 AND 28 ( 1 ) TO INTERPRET THEM AS PROHIBITING THE COMPETENT INSTITUTION TO GRANT SOCIAL BENEFITS TO A WORKER OR A RECIPIENT OF A PENSION WHICH ARE MORE FAVOURABLE THAN THOSE WHICH IT IS BOUND TO PROVIDE FOR THEM UNDER THE COMMUNITY RULES IF THE NATIONAL LEGISLATION WHICH THAT INSTITUTION APPLIES ENABLES IT IN PARTICULAR CIRCUMSTANCES TO GRANT SUCH ADDITIONAL SOCIAL SECURITY TO THOSE INSURED PERSONS .
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37. The Court would point out that the number and scale of the sales carried out in the present case are not in themselves decisive. As the Court has already held, the scale of the sales cannot constitute a criterion for distinguishing between the activities of an operator acting in a private capacity, which fall outside the scope of the VAT Directive, and those of an operator whose transactions constitute an economic activity. The Court has pointed out that a large volume of sales may also be carried out by operators acting in a private capacity (see, to that effect, Wellcome Trust , paragraph 37).
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41. Furthermore, the VAT exemptions referred to in Article 148 of Directive 2006/112 constitute independent concepts of EU law which must, therefore, be interpreted and applied uniformly throughout the European Union (see, to that effect, judgment in Unterpertinger , C‑212/01, EU:C:2003:625, paragraph 34).
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34. According to the Court ' s case-law, the exemptions envisaged in Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, in particular, SDC , cited above, paragraph 20, and Kügler , cited above, paragraph 28). Those exemptions constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another ( CPP , cited above, paragraph 15, and Commission v France , paragraph 21).
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32. Dans ces conditions, le grief émis à cet égard par SGL lors de l’audience devant le Tribunal ne saurait être considéré comme un simple développement du moyen tiré d’une détermination erronée du montant de base de l’amende.
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34. The aim of Article 2(4) is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 157(4) TFEU, to prevent or compensate for disadvantages in the professional career of the relevant persons (see, to that effect, Kalanke , paragraph 19; Case C-407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraph 48; and Case C-319/03 Briheche [2004] ECR I-8807, paragraph 25).
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25. Article 2(4) of the Directive thus authorises national measures relating to access to employment which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men. The aim of that provision is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 141(4) EC, to prevent or compensate for disadvantages in the professional career of the persons concerned (see, to that effect, Case C-450/93 Kalanke [1995] ECR I-3051, paragraph 19, and Case C-407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraph 48).
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60. Il est également de jurisprudence constante que les conséquences financières qui pourraient découler pour un État membre d’un arrêt rendu à titre préjudiciel ne justifient pas, par elles-mêmes, la limitation des effets de cet arrêt dans le temps (arrêt Brzeziński, précité, point 58 et jurisprudence citée).
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24 The Court has thus recognised, for example, that sex may be a determining factor for posts such as those of prison warders and head prison warders (Case 318/86 Commission v France [1988] ECR 3559, paragraphs 11 to 18), or for certain activities such as policing activities where there are serious internal disturbances (Johnston, paragraph 37).
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11 The category of head warders responsible for the direction of prisons does not appear as such in the contested list since the head warders in question do not constitute a "corps" within the meaning of the French legislation . On the other hand, the list refers to the "corps du personnel de surveillance" ( corps of custodial staff ) as part of the corps in the external departments of the prison service for which separate recruitment of men and women may be provided for .
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40. It should be recalled in that regard that preservation of the balanced allocation of powers of taxation between Member States is a legitimate objective recognised by the Court. Moreover, it is settled case-law that, in the absence of any unifying or harmonising measures adopted by the European Union, the Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (judgment in DMC , C‑164/12, EU:C:2014:20, paragraphs 46 and 47).
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84 It is admittedly true that, according to the Court's case-law, discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations and that, in relation to direct taxes, the situations of residents and non-residents are not, as a rule, comparable (Case C-279/93 Schumacker [1995] ECR I-225, paragraphs 30 and 31).
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31 By its second question, the national court also seeks to ascertain to what extent the foregoing interpretation might be affected by the fact that the methods for calculating interest were settled by the national authority responsible for the infringement of Community law which gave rise to the claims for repayment.
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68. It is clear that an undertaking acts thus if it uses funds forming part of its assets to supply services constituting an economic activity within the meaning of the Sixth Directive, such as the granting of interest-bearing loans by a holding company to companies in which it has shareholdings, whether those loans are granted as economic support to those companies or as placements of treasury surpluses or for other reasons.
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82. Thus, the Court has held that if a national law merely encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 36 to 73, and CIF , paragraph 56).
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73 SUBPARAGRAPH 1 OF ARTICLE 1 ( 1 ) OF THE CONTESTED DECISION MUST THEREFORE BE ANNULLED .
CHAPTER 2
THE COMPLAINT OF A CONCERTED PRACTICE HAVING AS ITS OBJECT THE PROTECTION OF THE NETHERLANDS MARKET
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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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57 In that regard, even if the Community had first created a situation capable of giving rise to legitimate expectations, an overriding public interest may preclude transitional measures from being adopted in respect of situations which arose before the new rules came into force but which are still subject to change (see, on that point, Case 74/74 CNTA v Commission [1975] ECR 533, paragraph 44; Case 84/78 Tomadini v Amministrazione delle Finanze dello Stato [1979] ECR 1801, paragraph 20; Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraphs 16 and 19; and the order in Case C-51/95 P Unifruit Hellas v Commission [1997] ECR I-727, paragraph 27). The objective of the contested decision, namely the protection of public health, constitutes an overriding public interest of that kind.
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44 IN THE ABSENCE OF AN OVERRIDING MATTER OF PUBLIC INTEREST, THE COMMISSION HAS VIOLATED A SUPERIOR RULE OF LAW, THUS RENDERING THE COMMUNITY LIABLE, BY FAILING TO INCLUDE IN REGULATION NO 189/72 TRANSITIONAL MEASURES FOR THE PROTECTION OF THE CONFIDENCE WHICH A TRADER MIGHT LEGITIMATELY HAVE HAD IN THE COMMUNITY RULES .
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86. Assessment of the economic justification for a system of discounts or bonuses established by an undertaking in a dominant position is to be made on the basis of the whole of the circumstances of the case (see, to that effect, Michelin , paragraph 73). It has to be determined whether the exclusionary effect arising from such a system, which is disadvantageous for competition, may be counterbalanced, or outweighed, by advantages in terms of efficiency which also benefit the consumer. If the exclusionary effect of that system bears no relation to advantages for the market and consumers, or if it goes beyond what is necessary in order to attain those advantages, that system must be regarded as an abuse.
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36. It should be borne in mind at the outset that a colour mark per se is capable of constituting, under certain conditions, a trade mark within the meaning of Article 2 of Directive 2008/95 (see, to that effect, Case C‑104/01 Libertel EU:C:2003:244, paragraphs 27 to 42, and Case C‑49/02 Heidelberger Bauchemie EU:C:2004:384, paragraph 42).
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30. In this case the query referred to the Court relates to an application to register a colour per se , represented by a sample of the colour on a flat surface, a description in words of the colour and/or an internationally recognised colour identification code.
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32. Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. In the event of discriminatory dismissal, a situation of equality could not be restored without either reinstating the victim of discrimination or, in the alternative, granting financial compensation for the loss and damage sustained (judgment in Marshall , C‑271/91, EU:C:1993:335, paragraph 25).
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6 It must be pointed out that, even if Article 171 of the Treaty does not specify the period within which a judgment must be complied with, the common interest attaching to the immediate and uniform application of Community law requires that the process of complying with a judgment be initiated at once and completed as soon as possible (see the judgment in Case 169/87 Commission v France [1988] ECR 4093, paragraph 14).
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14 In that regard it must be emphasized that even though Article 171 does not specify the period within which a judgment must be complied with, it is clear that the process of complying with a judgment must be initiated at once and must be completed as soon as possible . In this case it is clear that a delay in complying with a judgment that goes beyond the minimum period needed for the adoption of the measures required is particularly unjustifiable since Article 12 of Directive 72/464/EEC imposed on the Member States an obligation to bring into force not later than 1 July 1973 the provisions laid down by law, regulation or administrative action necessary to comply with that directive .
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27 IN THESE CIRCUMSTANCES AS FAR AS THE INTERESTED PARTIES ARE CONCERNED, THE ISSUE OF OR REFUSAL TO ISSUE THE IMPORT LICENCES MUST BE BOUND UP WITH THIS DECISION .
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94 Moreover, in paragraphs 23 to 25 of Sutton, the Court distinguished the circumstances of that case from those of Case C-271/91 Marshall [1993] ECR I-4367 (Marshall II). In the latter case, which concerned the award of interest on amounts payable by way of reparation for loss and damage sustained as a result of discriminatory dismissal, the Court ruled that full compensation for the loss and damage sustained cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value, and that the award of interest is an essential component of compensation for the purposes of restoring real equality of treatment (Marshall II, cited above, paragraphs 24 to 32). The award of interest was held in that case to be an essential component of the compensation which Community law required to be paid in the event of discriminatory dismissal.
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25 Accordingly, although Article 6 of Directive 79/7 requires the Member States to adopt the measures necessary to enable all persons who consider themselves to have been wronged by discrimination prohibited under the directive in the context of the award of social security benefits to establish the unlawfulness of such discrimination and to obtain the benefits to which they would have been entitled in the absence of discrimination, the payment of interest on arrears of benefits cannot be regarded as an essential component of the right as so defined.
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155. It is also apparent from the case-law that, although a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner (for example by a reference to those decisions), the Commission must, if a decision goes appreciably further than the previous decisions, provide a fuller account of its reasoning (see, inter alia, Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others v Commission [1975] ECR 1491, paragraph 31, and Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑9363, paragraph 44).
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14 It follows from the case-law of the Court that the objective pursued by that provision, which is to prevent the implementation of aid contrary to the Treaty, implies that the prohibition laid down to that effect by the last sentence of Article 93(3) is effective during the whole of the preliminary period, which the Court considers to be of two months (judgment in Case 120/73 Lorenz [1973] ECR 1471, paragraph 4, and Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 11).
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11 THUS IN JUDGMENTS OF 11 DECEMBER 1973 ( CASE 120/73 , LORENZ V GERMANY , ( 1973 ) ECR 1471 ; CASE 121/73 , MARKMANN V GERMANY , ( 1973 ) ECR 1495 ; CASE 122/73 , NORDSEE V GERMANY , ( 1973 ) ECR 1511 ; AND CASE 141/73 LOHREY V GERMANY , ( 1973 ) ECR 1527 ) THE COURT RECOGNIZED THAT THE PRELIMINARY STAGE OF THE PROCEDURE FOR REVIEWING AIDS UNDER ARTICLE 93 ( 3 ) IS INTENDED MERELY TO ALLOW THE COMMISSION TO FORM A PRIMA FACIE OPINION ON THE PARTIAL OR COMPLETE CONFORMITY WITH THE TREATY OF THE AID SCHEMES NOTIFIED TO IT . THE PURPOSE OF THAT PROVISION , WHICH SEEKS TO PREVENT THE IMPLEMENTATION OF AID CONTRARY TO THE TREATY , REQUIRES THAT THE PROHIBITION LAID DOWN IN THAT RESPECT BY THE LAST SENTENCE OF ARTICLE 93 ( 3 ) SHOULD BE EFFECTIVE DURING THE WHOLE OF THE PRELIMINARY STAGE . THEREFORE THE COMMISSION MUST ACT WITH DUE EXPEDITION IN ORDER TO TAKE ACCOUNT OF THE INTEREST OF THE MEMBER STATES IN OBTAINING CLARIFICATION IN CASES IN WHICH THERE MAY BE AN URGENT NEED TO TAKE ACTION ; OTHERWISE , AFTER THE EXPIRY OF AN APPROPRIATE PERIOD , WHICH THE COURT SET AT TWO MONTHS , THE MEMBER STATE CONCERNED MAY IMPLEMENT THE MEASURES IN QUESTION AFTER GIVING THE COMMISSION PRIOR NOTICE THEREOF .
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35 It should be borne in mind in this regard that one of the objectives of Directive 87/101 was to give priority to the processing of waste oils by regeneration. That objective, expressed in the second recital in the preamble to Directive 87/101, is inspired by the fact that regeneration is the most rational way of re-using waste oils in view of the energy savings which can be achieved.
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56. It is also important that the actual storage of the slurry be strictly limited to the needs of the spreading operations envisaged, which means, first, that the quantities stored must be limited in such a way that they are, in their entirety, indeed intended to be so reused (see, to this effect, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus , paragraph 40) and, second, that the period of storage must be limited in the light of the requirements resulting in this regard from the seasonal nature of the spreading operations, that is to say, it must not exceed what is required in order for the producer to be able to meet his existing contractual commitments to deliver slurry for spreading purposes during the spreading season in progress and the coming one.
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40 The Court has already answered sub-question (d) in the course of considering the main question. The uncertainty surrounding the proposed uses of the leftover stone and the impossibility of reusing it in its entirety support the conclusion that all that stone, and not merely the stone which will not be reused, is to be regarded as waste.
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26 IT FOLLOWS THAT ARTICLE 3 ( 2 ) OF THE DIRECTIVE IS INTENDED TO ENSURE THE CONTINUED OBSERVANCE BY THE TRANSFEREE OF THE TERMS AND CONDITIONS OF EMPLOYMENT AGREED IN A COLLECTIVE AGREEMENT ONLY IN RESPECT OF WORKERS WHO WERE ALREADY EMPLOYED BY THE UNDERTAKING AT THE DATE OF THE TRANSFER, AND NOT AS REGARDS PERSONS WHO WERE ENGAGED AFTER THAT DATE .
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10 So far as charges having equivalent effect are concerned, it is also settled case-law that their prohibition covers all charges levied at the time of, or by reason of, importation, which are imposed specifically on an imported product but not on a similar domestic product, and that even pecuniary charges intended to finance the activities of an agency governed by public law can constitute charges having equivalent effect (see, in particular, Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l' Ouest and Others v Receveur Principal des Douanes de La Pallice-Port [1992] ECR I-1847, paragraph 23).
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23 Articles 12 and 13 of the Treaty prohibit customs duties on imports and exports in trade between the Member States and charges having equivalent effect. With regard to customs duties and charges having equivalent effect on imports, the Court stated, in its judgment in Case 77/72 Capolongo [1973] ECR 611, that in principle that prohibition covers all charges levied at the time of, or by reason of, importation, which are imposed specifically on an imported product but not on a similar domestic product, and that even pecuniary charges intended to finance the activities of an agency governed by public law can constitute charges having equivalent effect.
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38. Although acts of individual application can be covered only by Article 2(a) of the second comitology decision, measures of general application may come under either of the two parts of that article.
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