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20 According to the case-law of the Court, Community law cannot be relied on for abusive or fraudulent ends (see, in particular, regarding freedom to supply services, Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299, paragraph 13, and Case C-23/93 TV 10 v Commissariaat voor de Media [1994] ECR I-4795, paragraph 21; regarding the free movement of goods, Case 229/83 Leclerc and Others v `Au Blé Vert' and Others [1985] ECR 1, paragraph 27; regarding freedom of movement for workers, Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 43; regarding the common agricultural policy, Case C-8/92 General Milk Products v Hauptzollamt Hamburg-Jonas [1993] ECR I-779, paragraph 21; and regarding social security, Case C-206/94 Brennet v Paletta [1996] ECR I-2357, paragraph 24).
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21 As stated by the plaintiff company in the main proceedings and the Commission, the position would be different only if it could be shown that the importation and re-exportation of that cheese were not realised as bona fide commercial transactions but only in order wrongfully to benefit from the grant of monetary compensatory amounts (see, by analogy, the judgment in Case 250/80 Anklagemyndigheden v Toepfer [1981] ECR 2465). The bona fide nature of those transactions is a question of fact to be decided by the national court.
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33. At the outset, it should be recalled that it follows from Article 3(1)(a) of Directive 2000/43, Article 3(1)(a) of Directive 2000/78 and indent (a) of the second subparagraph of Article 1 and Article 14(1)(a) of Directive 2006/54 that those directives apply to a person seeking employment, and also in regard to the selection criteria and recruitment conditions of that employment.
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37. In that context, it should be recalled that, under Article 61(2) of Regulation No 6/2002, an action may be brought before the General Court against decisions of the Boards of Appeal of OHIM for infringement of the Treaty, of that regulation or of any rule of law relating to their application. It follows that the General Court has jurisdiction to conduct a full review of the legality of OHIM’s assessment of the particulars submitted by an applicant (see Case C-263/09 P Edwin v OHIM [2011] ECR I-5853, paragraph 52, and Case C-281/10 P PepsiCo v Grupo Promer Mon Graphic [2011] ECR I-10153, paragraph 66).
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66. In that context, it should be recalled that the General Court has jurisdiction to conduct a full review of the legality of OHIM’s assessment of the particulars submitted by an applicant (see Case C‑263/09 P Edwin v OHIM [2011] ECR I‑0000, paragraph 52).
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113
Under Article 204(1)(a) of the Customs Code, a customs debt on importation arises through the non-fulfilment of one of the obligations arising from the use of the customs procedure under which the goods liable to import duties have been placed, unless it is established that those failures have no significant effect on the correct operation of the customs procedure in question.
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57 It should be recalled that, according to settled case-law, recourse to justification on grounds of public policy under Article 56 of the Treaty presupposes the need to maintain a discriminatory measure in order to deal with a genuine and sufficiently serious threat affecting one of the fundamental interests of society (see, to that effect, Case 30/77 R v Bouchereau [1977] ECR I-1999, paragraph 35; Case C-114/97 Commission v Spain [1998] ECR I-6717, paragraph 46; Case C-348/96 Calfa [1999] ECR I-11, paragraph 21). It follows that there must be a direct link between that threat, which must, moreover, be current, and the discriminatory measure adopted to deal with it (see, to that effect, Case 352/85 Bond van Adverteerders and Others, paragraph 36; and Calfa, paragraph 24).
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36 IT IS SUFFICIENT TO OBSERVE IN THAT REGARD THAT THE MEASURES TAKEN BY VIRTUE OF THAT ARTICLE MUST NOT BE DISPROPORTIONATE TO THE INTENDED OBJECTIVE . AS AN EXCEPTION TO A FUNDAMENTAL PRINCIPLE OF THE TREATY, ARTICLE 56 OF THE TREATY MUST BE INTERPRETED IN SUCH A WAY THAT ITS EFFECTS ARE LIMITED TO THAT WHICH IS NECESSARY IN ORDER TO PROTECT THE INTERESTS WHICH IT SEEKS TO SAFEGUARD .
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32. Par ailleurs, c’est à la Commission seule d’apprécier l’opportunité d’introduire et de maintenir un recours en manquement (voir, notamment, arrêts du 22 juin 1993, Commission/Danemark, C‑243/89, Rec. p. I‑3353, point 30, et du 7 avril 2011, Commission/Luxembourg, C‑305/10, point 9).
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81
Thus, it is following a schematic interpretation of the relevant EU rules that the Court of Justice interpreted those rules as meaning that, as from 2000, the Commission is required to comply with a legal time limit when adopting a decision on financial corrections (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 56 to 82, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 56 to 82).
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65. As regards the wording of that provision in its different language versions, there are no divergences comparable to those described in paragraphs 53 and 54 above.
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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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35
As regards, first, the balanced allocation of taxation powers between Member States, it should be borne in mind that the Court has, admittedly, accepted that the preservation of the balanced allocation of taxation powers between Member States constitutes a legitimate objective and 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, with a view to eliminating double taxation (judgment of 21 May 2015 in Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 42).
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42. In that regard it should be borne in mind, first, that the preservation of the balanced allocation of powers of taxation between Member States is a legitimate objective recognised by the Court, and that, in the absence of any unifying or harmonising measures of the European Union, the Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, with a view to eliminating double taxation (judgment in Commission v Germany , C‑591/13, EU:C:2015:230, paragraph 64 and the case‑law cited).
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19. Il convient d’emblée de rappeler que la sixième directive et la directive 2006/112 établissent un système commun de TVA fondé, notamment, sur une définition uniforme des opérations taxables (voir arrêts du 12 janvier 2006, Optigen e.a., C‑354/03, C‑355/03 et C‑484/03, Rec. p. I‑483, point 36; du 21 février 2006, Halifax e.a., C‑255/02, Rec. p. I‑1609, point 48, ainsi que du 20 juin 2013, Newey, C‑653/11, point 39).
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17. It follows that, as the Advocate General notes, in essence, in points 33 to 36 of his Opinion, for the provisions of the Authorisation Directive to be applicable to a tax such as that at issue in the main proceedings, the trigger for that tax must be linked to a general authorisation procedure, which ensures, under Article 2(2)(a) of the Authorisation Directive, rights for the provision of electronic communications networks or services (see, to that effect, judgments in Commission v France , C‑485/11, EU:C:2013:427, paragraphs 30, 31 and 34; Vodafone Malta and Mobisle Communications , C‑71/12, EU:C:2013:431, paragraphs 24 and 25; and Fratelli De Pra and SAIV , C‑416/14, EU:C:2015:617, paragraph 41).
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41. Next, the argument put forward by De Pra and SAIV to the effect that a charge such as the TCG is contrary to Article 12 of Directive 2002/20 because it is not an administrative charge paid by way of fees intended to cover only the administrative costs incurred in the issue, management, control and enforcement of the applicable general authorisation scheme, cannot be upheld. The Court has held previously that a charge the trigger for which is linked not to a general authorisation procedure for access to the electronic telecommunications services market but to the use of mobile telephony services provided by operators and which is ultimately borne by the user of such services does not fall within the scope of Article 12 (see judgment in Vodafone Malta and Mobisle Communications , C‑71/12, EU:C:2013:431, paragraphs 25 and 29).
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55
In such circumstances, it cannot be excluded from the outset that the contracting authority may, for the purposes of the proper performance of the contract concerned, expressly set out, in the tender notice or the tender specifications, the specific rules authorising an economic operator to rely on the capacities of other entities.
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48 With regard to the first objection, it follows from the title of Regulation No 1408/71 and from Article 2 thereof that this regulation governs the application of social security schemes to members of the family of employed persons or self-employed persons moving within the Community, with the result that, if a member of the family of a worker resides in a Member State other than that in which the worker resides, the provisions of Regulation No 1408/71 are, in principle, applicable (see, along these lines, Case 115/77 Laumann [1978] ECR 805, paragraph 5, and Case C-194/96 Kulzer [1998] ECR I-895, paragraph 30).
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30 Finally, according to the fifth recital in the preamble to Regulation No 1408/71 in its original form, the provisions which the Regulation lays down for coordination of national social security legislation also apply to circumstances where members of the worker's family move within the Community.
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Il importe également de rappeler qu’il résulte de l’article 256, paragraphe 1, second alinéa, TFUE, de l’article 58, premier alinéa, du statut de la Cour de justice de l’Union européenne ainsi que de l’article 168, paragraphe 1, sous d), et de l’article 169, paragraphe 2, du règlement de procédure de la Cour qu’un pourvoi doit indiquer de façon précise les éléments critiqués de l’arrêt dont l’annulation est demandée ainsi que les arguments juridiques qui soutiennent de manière spécifique cette demande (voir arrêt du 11 avril 2013, Mindo/Commission, C‑652/11 P, EU:C:2013:229, point 21). Ainsi, lorsqu’un requérant allègue une dénaturation des éléments de preuve par le Tribunal, il doit indiquer de façon précise les éléments qui auraient été dénaturés par celui-ci et démontrer les erreurs d’analyse qui, dans son appréciation, auraient conduit le Tribunal à cette dénaturation (voir, en ce sens, arrêt du 7 septembre 2016, Pilkington Group e.a./Commission, C‑101/15 P, EU:C:2016:631, point 62).
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58. It is settled law that national authorities must ensure, inter alia, that qualifications obtained in another Member State are accorded their proper value and duly taken into account (see, inter alia, Case C‑340/89 Vlassopoulou [1991] ECR I‑2357, paragraph 16; Case C‑31/00 Dreessen [2002] ECR I‑663, paragraphs 23 and 24; and Rubino , paragraph 34).
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16 Consequently, a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialized knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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78. In the present case, the General Court therefore correctly held, in paragraph 62 of the judgment under appeal, that ‘it does not follow from [that point 13] that only the value of sales for removals actually affected by the infringement may be taken into account in order to determine the relevant value of sales’. In that regard, it could therefore rely, without erring in law, in paragraph 64 of that judgment on the objective of the European Union rules on competition, in paragraph 65 of that judgment on the need to take into account the secret character of cartels, which in the present case would make it ‘impossible to find evidence in relation to each of the removals affected’ and, in paragraph 66 of that judgment on the case-law resulting from Musique Diffusion française and Others v Commission .
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66 AT POINT 3 OF HIS STATEMENT , MR MASON DECLARES THAT , IN ABOUT 1974 , COMET COMMENCED AN EXPORT BUSINESS , MAINLY IN HI-FI EQUIPMENT , TO OTHER EEC COUNTRIES . HOWEVER , UNTIL DECEMBER 1975 , THOSE EXPORTS INCLUDED ONLY SMALL AMOUNTS OF PIONEER EQUIPMENT . ON THE OTHER HAND , IN THE PERIOD FROM 19 DECEMBER 1975 TO 16 JANUARY 1976 , THE DATE OF THE LAST CONSIGNMENT , COMET SOLD TO EURO-ELECTRO IN BRUSSELS PIONEER EQUIPMENT WORTH IN TOTAL MORE THAN UKL 33 000 . IN RESPECT OF THE PERIOD PRIOR TO RECEIPT OF MR TODD ' S LETTER , THE STATEMENT THUS SUPPORTS THE FINDINGS OF THE COMMISSION .
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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. Enfin, il convient de rappeler que le droit de l’Union ne régit pas les rapports entre la CEDH et les ordres juridiques des États membres et ne détermine pas non plus les conséquences à tirer par un juge national en cas de conflit entre les droits garantis par cette convention et une règle de droit national (voir, en ce sens, arrêts du 24 avril 2012, Kamberaj, C‑571/10, point 62, et du 26 février 2013, Åkerberg Fransson, C‑617/10, point 44). Il n’y a donc pas lieu pour la Cour de se prononcer sur la demande de la juridiction de renvoi en ce qu’elle porte sur la CEDH et le protocole additionnel à celle-ci.
Sur la libre prestation des services
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44. As regards, first, the conclusions to be drawn by a national court from a conflict between national law and the ECHR, it is to be remembered 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 requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given 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 European Union law. Consequently, European Union law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law (see, to this effect, Case C-571/10 Kamberaj [2012] ECR, paragraph 62).
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33. Il convient de rappeler, à cet égard, que la Cour a déjà jugé que, dans le cadre de cette disposition, l’État membre demandeur peut, aux fins de justifier le maintien de dispositions nationales préexistantes, invoquer le fait qu’il évalue le risque pour la santé publique autrement que le législateur de l’Union ne l’a fait dans la mesure d’harmonisation, des évaluations divergentes de ces risques pouvant légitimement être effectuées, sans nécessairement être fondées sur des données scientifiques différentes ou nouvelles (arrêt Danemark/Commission, C‑3/00, EU:C:2003:167, point 63).
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17. Where questions submitted by national courts concern the interpretation of a provision of Community law, the Court is thus bound, in principle, to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of Community law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see BIAO , paragraph 89, and Confederación Española de Empresarios de Estaciones de Servicio , paragraph 17).
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17. Where questions submitted by national courts concern the interpretation of a provision of Community law, the Court of Justice is bound, in principle, to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of Community law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, BIAO , paragraph 89 and the case-law cited).
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47 IT IS TRUE THAT THE 1982 RULES ON THE UTILIZATION OF FUNDS PROVIDED THAT THE FUNDS ALLOCATED COULD ONLY BE USED FOR ACTIVITIES CONNECTED WITH THE INFORMATION CAMPAIGN FOR THE 1984 ELECTIONS . TO ENSURE THAT THAT CONDITION WAS MET , THEY SPECIFIED THE KIND OF EXPENDITURE WHICH COULD BE COVERED , DESIGNATED THE PERSONS RESPONSIBLE FOR ENSURING THAT THE FUNDS WERE CORRECTLY UTILIZED , REQUIRED THE KEEPING OF SEPARATE ACCOUNTS ITEMIZING THE DIFFERENT TYPES OF EXPENDITURE AND REQUIRED THE SUBMISSION OF REPORTS ON THE UTILIZATION OF THE FUNDS . IN THIS WAY , THE EUROPEAN PARLIAMENT SOUGHT TO GUARANTEE THAT THE FUNDS MADE AVAILABLE TO THE POLITICAL GROUPS WOULD BE USED MAINLY TO COVER EXPENDITURE ON MEETINGS AND PUBLICATIONS ( BROCHURES , ADVERTISEMENTS IN THE PRESS AND POSTERS ).
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20. By contrast, the Court does have jurisdiction to supply the national court with all the guidance as to the interpretation of Community law necessary to enable that court to rule on the compatibility of the national rules with the provisions of Community law (see, inter alia, Lamaire , paragraph 10, and Wilson , paragraph 35).
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10 It should first of all be noted that, although in proceedings brought under Article 177 of the Treaty, it is not for the Court to rule on the compatibility of national rules with provisions of Community law, the Court is competent to give a ruling on the interpretation of Community law in order to enable the national court to assess the compatibility of those rules with the Community provisions.
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51. In fact, whereas, through the mechanism of the deduction of tax laid down by Articles 17 to 20 of the Sixth Directive, VAT taxes only the final consumer and is completely neutral as regards the taxable persons involved in the production and distribution process prior to the stage of final taxation, regardless of the number of transactions involved (see, to that effect, Case C‑317/94 Elida Gibbs [1996] ECR I‑5339, paragraphs 19, 22 and 23; Case C‑427/98 Commission v Germany [2002] ECR I‑8315, paragraph 29; and Banca Popolare di Cremona , paragraph 32), that is not the case with a tax such as the HIPA.
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26. Indeed, according to settled case-law, there is a presumption of relevance in favour of questions on the interpretation of European Union law referred by a national court, and it is a matter for the national court to define, and not for the Court to verify, in which factual and legislative context they operate (Case C‑300/01 Salzmann [2003] ECR I‑4899, paragraphs 29 and 31; Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22; and Case C‑210/06 Cartesio [2008] ECR I‑9641, paragraph 67). The Court declines to rule on a reference for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or to 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 ( Cartesio , paragraph 67 and the case-law cited).
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22. According to settled case-law, questions on the interpretation of Community 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 (see Case C‑300/01 Salzmann [2003] ECR I‑4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39, and Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-0000, paragraph 25).
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54. Pursuant to Article 60, the Regulation is to take precedence over the 1980 Hague Convention.
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32. It is settled case‑law that that distinctive character must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, second, by reference to the perception of them by the relevant public ( Storck v OHIM , paragraph 25; Henkel v OHIM , paragraph 35; and Eurohypo v OHIM , paragraph 67). Furthermore, the Court has held, as OHIM points out in its appeal, that that method of assessment is also applicable to an analysis of the distinctive character of signs consisting solely of a colour per se, three‑dimensional marks and slogans (see, to that effect, respectively, Case C‑447/02 P KWS Saat v OHIM [2004] ECR I‑10107, paragraph 78; Storck v OHIM , paragraph 26; and Audi v OHIM , paragraphs 35 and 36).
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26. According to equally established case-law, the criteria for assessing the distinctive character of three-dimensional marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark (see Henkel v OHIM , paragraph 38, Case C-136/02 P Mag Instrument v OHIM [2004] ECR I‑9165, paragraph 30, and Deutsche SiSi-Werke v OHIM , paragraph 27).
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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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53. It follows that all the international commitments challenged in this action must be assessed in relation to the provisions of Community law cited by the Commission in support of this action (see, to that effect, Commission v Denmark , paragraphs 36 to 42; Commission v Sweden , paragraphs 34 to 40; Commission v Finland , paragraphs 36 to 42; Commission v Belgium , paragraphs 47 to 53; Commission v Luxembourg , paragraphs 42 to 48, and Commission v Austria , paragraphs 46 to 52).
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36 It must be noted in that regard that an examination of the substance of the Commission's principal claim does not necessarily require the Court to take a view on the question whether the amendments made in 1995 transformed the pre-existing 1949 Agreement and 1980 Protocol into a new agreement.
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13 THERE IS NO REASON TO CONCLUDE THAT THE DIRECTIVE HAS EXCEEDED THOSE LIMITS . THE DIRECTIVE MUST BE SEEN IN THE PERSPECTIVE OF ENVIRONMENTAL PROTECTION , WHICH IS ONE OF THE COMMUNITY ' S ESSENTIAL OBJECTIVES . IT IS EVIDENT , PARTICULARLY FROM THE THIRD AND SEVENTH RECITALS IN THE PREAMBLE TO THE DIRECTIVE , THAT ANY LEGISLATION DEALING WITH THE DISPOSAL OF WASTE OILS MUST BE DESIGNED TO PROTECT THE ENVIRONMENT FROM THE HARMFUL EFFECTS CAUSED BY THE DISCHARGE , DEPOSIT OR TREATMENT OF SUCH PRODUCTS . IT IS ALSO EVIDENT FROM THE PROVISIONS OF THE DIRECTIVE AS A WHOLE THAT CARE HAS BEEN TAKEN TO ENSURE THAT THE PRINCIPLES OF PROPORTIONALITY AND NON-DISCRIMINATION WILL BE OBSERVED IF CERTAIN RESTRICTIONS SHOULD PROVE NECESSARY . IN PARTICULAR , ARTICLE 5 OF THE DIRECTIVE PERMITS THE CREATION OF A SYSTEM OF ZONING ' WHERE THE AIMS DEFINED IN ARTICLES 2 , 3 AND 4 CANNOT OTHERWISE BE ACHIEVED ' .
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60. As regards the national rules adopted by the Member States in the area of VAT, the Court has held inter alia that the status of taxable person, 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, as that would retrospectively deprive the taxable person of the right to deduct VAT on the investment expenditure he had incurred (see, to that effect, Case C-400/98 Breitsohl [2000] ECR I‑4321, paragraphs 34 to 38).
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35 It is important to note that it is the acquisition of goods or services by a taxable person acting as such that gives rise to the application of the VAT system and therefore of the deduction mechanism. The use to which the goods or services are put, or intended to be put, determines only the extent of the initial deduction to which the taxable person is entitled under Article 17 of the Sixth Directive and the extent of any adjustments in the course of the following periods, which must be carried out under the conditions laid down in Article 20 of that directive (Case C-97/90 Lennartz v Finanzamt München [1991] ECR I-3795, paragraph 15).
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14THE COMMUNITY RULES COULD NOT , IN THE ABSENCE OF AN EXPRESS EXCEPTION CONSISTENT WITH THE AIMS OF THE TREATY , BE APPLIED IN SUCH A WAY AS TO DEPRIVE A MIGRANT WORKER OR HIS DEPENDANTS OF THE BENEFIT OF A PART OF THE LEGISLATION OF A MEMBER STATE .
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56. It must be observed at the outset that the factors relevant to the determination of whether there is a risk to public policy within the meaning of Article 7(4) of Directive 2008/115 are not materially the same as those which are relevant to the assessment of whether there is a risk of absconding within the meaning of that provision, the concept of ‘risk of absconding’ being distinct from that of ‘risk to public policy’ (as regards the concept of ‘risk of absconding’ within the meaning of that provision, see, in particular, judgment in Mahdi , C‑146/14 PPU, EU:C:2014:1320, paragraphs 65 to 74).
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69. Furthermore, as has been stated in paragraph 61 of this judgment, any decision on the extension of the detention of a third-country national and, thus, on the existence of the circumstances described in Article 15(6) of Directive 2008/115 must be preceded by a re-examination of the substantive conditions which formed the basis for the initial decision to detain the third-country national concerned. That calls for an assessment by the judicial authority, in the course of the examination required under the second sentence of Article 15(3) of the directive, of the circumstances which gave rise to the initial finding that there was a risk of the third-country national absconding.
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28. The same conclusion must follow with regard to the levies at issue in the main proceedings, which are not imposed on the employment income and substitute income of workers, but which are imposed on income from assets, since it is not in dispute that the proceeds of those levies are allocated specifically and directly to the financing of certain branches of social security in France or to the discharge of their debts.
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30. The Court has also held that national rules relating to the tax treatment of dividends from a third country which do not apply exclusively to situations in which the parent company exercises decisive influence over the company paying the dividends must be assessed in the light of Article 63 TFEU ( Test Claimants in the FII Group Litigation , paragraph 99).
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99. On the other hand, national rules relating to the tax treatment of dividends from a third country which do not apply exclusively to situations in which the parent company exercises decisive influence over the company paying the dividends must be assessed in the light of Article 63 TFEU. A company resident in a Member State may therefore rely on that provision in order to call into question the legality of such rules, irrespective of the size of its shareholding in the company paying dividends established in a third country (see, to this effect, A , paragraphs 11 and 27).
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30. La Cour a toutefois précisé que, pour que des impôts, droits, prélèvements et taxes puissent relever de l’assiette de la TVA alors même qu’ils ne représentent pas de valeur ajoutée et qu’ils ne constituent pas la contrepartie économique de la livraison du bien, ils doivent présenter un lien direct avec cette livraison (arrêt De Danske Bilimportører, précité, point 17 et jurisprudence citée).
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51. The first aspect, which is external, presumes that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (see, to that effect, Case C‑103/97 Köllensperger and Atzwanger [1999] ECR I-551, paragraph 21, and Case C‑407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraph 36; see also, to the same effect, Eur. Court HR Campbell and Fell v. United Kingdom , judgment of 28 June 1984, Series A No 80, § 78). That essential freedom from such external factors requires certain guarantees sufficient to protect the person of those who have the task of adjudicating in a dispute, such as guarantees against removal from office (Joined Cases C‑9/97 and C‑118/97 Jokela and Pitkäranta [1998] ECR I-6267, paragraph 20).
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20 It appears, furthermore, from the documents before the Court, that it is composed of three members, two of whom are full-time appointees. They are appointed by public authority for a five-year term and enjoy the same guarantees as judges against removal from office.
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79. In carrying out the requisite assessment, national courts must also take account of all the relevant factors in the case ( Estée Lauder , paragraphs 27 and 30), having regard, as follows from Article 3 of the Directive, to the information contained in the advertising and, more generally, to all its features.
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30. An aid measure within the meaning of Article 87(1) EC which is put into effect in infringement of the obligations arising from Article 88(3) EC is unlawful (see Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon [1991] ECR I-5505, paragraph 17). It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the prohibition on putting aid into effect, taking all the consequential measures under national law as regards both the validity of decisions giving effect to aid measures and the recovery of the financial support granted (see Joined Cases C-34/01 to C-38/01 Enirisorse [2003] ECR I-14243, paragraph 42).
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42. According to the Court ' s settled case-law, as a result of the direct effect which the last sentence of Article 93(3) of the Treaty has been held to have the immediate enforceability of the prohibition on implementation referred to in that article extends to all aid which has been implemented without being notified (Case C-354/90 Fédération nationale du Commerce Extérieur des Produits Alimentaires et Syndicat Nat ional des Négociants et Transformateurs de Saumon [1991] ECR I-5505, paragraph 11). It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the prohibition on putting aid into effect, taking all the consequential measures under national law as regards both the validity of decisions giving effect to aid measures and the recovery of the financial support granted (Case C-17/91 Lornoy and Others [1992] ECR I-6523, paragraph 30).
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68. No provision of the Treaties prohibits an institution from adopting such rules of practice.
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38. It follows that a worker who is a national of a Member State, such as Mr My, may not be refused the rights and social advantages which Article 39 EC and Regulation No 1612/68 afford him (see Case 152/82 Forcheri [1983] ECR 2323, paragraph 9; Echternach and Moritz , paragraph 12; Schmid , paragraph 22; and Ferlini , paragraph 43).
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12 It follows, in particular, that a child of such a worker who is a national of a Member State may not be refused the rights and privileges which Article 48 of the Treaty and Regulation No 1612/68 afford him .
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44. It thus appears that the contract in question forms both the basis and the legal framework for the future construction and operation of a facility intended to perform a public service, namely thermal incineration of waste. That contract was concluded solely by public authorities, without the participation of any private party, and does not provide for or prejudice the award of any contracts that may be necessary in respect of the construction and operation of the waste treatment facility.
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20 It should further be observed that the purpose of the provision in question of Annex VI to Regulation No 1408/71 is to prevent the obstacles which might arise from the transitional AOW rules from impeding the freedom of movement of those persons who, having resided or worked in the Netherlands, wish to move to another Member State (see the judgment in Spruyt, paragraph 22). Accordingly, the provision must be given a broad interpretation in order that the restrictive effects which it is susceptible of having on the free movement of such persons are limited to the utmost and do not go beyond that which is necessary in order to take account of the particular features of a general old-age insurance scheme, such as the AOW, under which, it is recalled, the mere fact of residing in the Netherlands is sufficient in order to be insured.
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22 CONSEQUENTLY , POINT 2 ( A ) PROVIDES THAT , IN THE CASE OF A PERSON WHO , IN ACCORDANCE WITH SUBPARAGRAPH ( F ), HAS RESIDED FOR SIX YEARS AFTER HIS 59TH BIRTHDAY IN ANOTHER MEMBER STATE , PERIODS BEFORE THE ENTRY INTO FORCE OF THE NETHERLANDS LEGISLATION ARE TO BE TAKEN INTO ACCOUNT ONLY IF A SUPPLEMENTARY CONDITION IS SATISFIED , NAMELY THAT DURING THE PERIODS IN QUESTION THE PERSON CONCERNED RESIDED IN THE NETHERLANDS OR PURSUED AN ACTIVITY AS AN EMPLOYED PERSON IN THAT COUNTRY . SUCH PERIODS PROVIDE A SUFFICIENT LINK WITH THE NETHERLANDS SCHEME . THE PURPOSE OF SUBPARAGRAPH ( A ) IS TO PREVENT THE OBSTACLES WHICH MIGHT ARISE FROM ARTICLE 43 OF THE OLD-AGE LAW FROM IMPEDING THE FREEDOM OF MOVEMENT OF THOSE PERSONS WHO , HAVING RESIDED OR WORKED IN THE NETHERLANDS , WISH TO MOVE TO ANOTHER MEMBER STATE .
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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39. However, according to that same case‑law, the licence agreement does not constitute the absolute and unconditional consent of the proprietor to the licensee putting the goods bearing the trade mark on the market (see Copad , paragraph 47).
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47. Even though it follows that, in such circumstances, the proprietor of the trade mark cannot plead that the contract was wrongly implemented in order to invoke, in respect of the licensee, the rights conferred on him by the trade mark, the fact remains that, contrary to Copad’s submission, the licence agreement does not constitute the absolute and unconditional consent of the proprietor of the trade mark to the licensee putting the goods bearing the trade mark on the market.
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78 For one thing, it seeks to achieve the aim of ensuring that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned.
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36. The Court has consistently held that the principle of the right to a fair hearing, to which the principle of the right to be heard is closely linked, applies not only to citizens but also to the Member States. As regards the latter, that principle has been recognised in the context of proceedings brought by a Community institution against Member States (see, inter alia, Denmark v Commission , paragraph 46). It has been held that the right to a fair hearing is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law and must be guaranteed even in the absence of any rules (see, inter alia, Joined Cases C‑48/90 and C‑66/90 Netherlands and Others v Commission [1992] ECR I‑565, paragraph 44; Case C‑288/96 Germany v Commission [2000] ECR I‑8237, paragraph 99; and Case C‑287/02 Spain v Commission [2005] ECR I‑5093, paragraph 37).
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99 It must be borne in mind that, according to settled case-law, observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question (see the judgments in Belgium v Commission, paragraph 27, and Boussac, paragraph 29, cited above).
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48 However, the differences between the position of professional transport companies and companies which carry out transport only to meet their own needs are such that the latter cannot be considered to operate on the transport market or to form part of the transport sector. In particular, non-transport companies do not have customers to whom they supply transport services or seek such customers, and the transport services which they undertake and are interchangeable with those offered by professional transport companies are confined to those that meet their own needs. The situation of professional transport companies and companies which carry out transport only on their own account are therefore not sufficiently homogeneous in order for both categories to belong to the same sector and be operational on the same market.
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65. Therefore, in defining their social policy on the basis of political, economic, social, demographic and/or budgetary considerations, the national authorities concerned may be led to choose to prolong people’s working life or, conversely, to provide for early retirement (see Palacios de la Villa , paragraphs 68 and 69). The Court has held that it is for those authorities to find the right balance between the different interests involved, while ensuring that they do not go beyond what is appropriate and necessary to achieve the legitimate aim pursued (see, to that effect, Palacios de la Villa , paragraphs 69 and 71, and also Rosenbladt , paragraph 44).
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69. As is already clear from the wording, ‘specific provisions which may vary in accordance with the situation in Member States’, in recital 25 in the preamble to Directive 2000/78, such is the case as regards the choice which the national authorities concerned may be led to make on the basis of political, economic, social, demographic and/or budgetary considerations and having regard to the actual situation in the labour market in a particular Member State, to prolong people’s working life or, conversely, to provide for early retirement.
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31 It should be noted that in order to establish whether a provision of Community law is in conformity with the principle of proportionality it is necessary to ascertain whether the means which it employs are appropriate and necessary to attain the objective sought. Where Community legislation makes a distinction between a primary obligation, compliance with which is necessary in order to attain the objective sought, and a secondary obligation, essentially of an administrative nature, it cannot, without breaching the principle of proportionality, penalise failure to comply with the secondary obligation as severely as failure to comply with the primary obligation (see Man (Sugar), paragraph 20, and Maas, paragraph 15).
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41. In that regard, recital 8 of the preamble to Directive 2008/95 emphasises that attainment of the objectives at which the approximation of the laws of the Member States is aiming requires that the conditions for obtaining and continuing to hold a registered trade mark be, in general, identical in all Member States (see, to that effect, Sieckmann , paragraph 36; Case C-363/99 Koninklijke KPN Nederland [2004] ECR I-1619, paragraph 122; and Case C-482/09 Budějovický Budvar [2011] ECR I-8701, paragraph 31).
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36. The purpose of the Directive, as stated in the first and seventh recitals in the preamble thereto, is to approximate the trade mark laws at present applicable in the Member States and to make the conditions for obtaining and continuing to hold a registered trade mark identical in all Member States, in order to abolish disparities between those laws which may impede the free movement of goods and freedom to provide services and may distort competition within the common market.
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33. As the Court held in paragraph 64 of Vulcan Silkeborg , it is for the national courts or arbitrators to determine, in the light of all the evidence in the case before them, whether the changes made by a supplier constitute, in accordance with the first indent of the first paragraph of Article 5(3) of Regulation No 1400/2002, a reorganisation of the whole or a substantial part of its distribution network and whether that reorganisation was made necessary by the entry into force of Regulation No 1400/2002.
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47
Furthermore, it should be observed that the exemptions provided for in Article 13A(1) of the Sixth Directive are autonomous concepts of EU law and that they must therefore be given an EU definition (judgment in Kingscrest Associates and Montecello, C‑498/03, EU:C:2005:322, paragraph 22). However, to define the services referred to in Article 13A(1)(g) of the Sixth Directive by reference to the existence of public financial support in favour of the operator or the taking responsibility for the costs of the services by social security bodies would make that concept dependent on the specific features of the relevant legislation of the Member States, which could compromise the autonomous interpretation that must be given to that concept and could create discrepancies in its application within the European Union.
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22. In that regard, it should be observed that according to settled case-law the exemptions provided for in Article 13 of the Sixth Directive have their own independent meaning in Community law and they must therefore be given a Community definition (see Case C-358/97 Commission v Ireland [2000] ECR I‑6301, paragraph 51; Case C‑275/01 Sinclair Collis [2003] ECR I‑5965, paragraph 22; and Case C-284/03 Temco Europe [2004] ECR I-0000, paragraph 16).
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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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79
In order to ensure that the objective of management independence of the infrastructure manager is attained, the latter must, within the charging framework established by the Member States, be given a certain latitude in determining the amount of the charges so as to enable it to use that flexibility as a management tool (judgments of 28 February 2013, Commission v Spain, C‑483/10, EU:C:2013:114, paragraphs 44 and 49, and of 11 July 2013, Commission v Czech Republic, C‑545/10, EU:C:2013:509, point 35).
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49. It follows from the foregoing considerations that, in order to ensure that the objective of management independence of the infrastructure manager is attained, the latter must, within the charging framework established by the Member States, be given a degree of flexibility in determining the amount of charges so as to enable it to use that flexibility as a management tool.
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46. Certes, le Tribunal s’est référé à l’arrêt Agencja Wydawnicza Technopol/OHMI (EU:C:2011:139) qui applique le principe énoncé au point précédent à une demande d’enregistrement d’une marque. Toutefois, un tel principe est également valable dans le cadre de l’appréciation du caractère sérieux de l’usage d’une marque antérieure. En effet, l’OHMI doit examiner l’usage sérieux de la marque concernée au vu des pièces fournies par l’opposante et en application des critères énoncés au point 29 du présent arrêt, ce qui implique que l’examen doive avoir lieu en prenant en compte les circonstances factuelles de chaque cas concret. Partant, la requérante ne saurait utilement invoquer la décision antérieure de l’OHMI du 22 septembre 2005 (R 1101/2004) afin d’obtenir l’annulation de l’arrêt attaqué.
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34. A trade mark ' s distinctiveness within the meaning of Article 3(1)(b) of the Directive must be assessed, first, by reference to those goods or services and, second, by reference to the perception of the relevant public, which consists of average consumers of the goods or services in question, who are reasonably well informed and reasonably observant and circumspect (see, inter alia, Joined Cases C-53/01 to C-55/01 Linde and Others [2003] ECR I-3161, paragraph 41, and Case C-104/01 Libertel [2003] ECR I-3793, paragraphs 46 and 75).
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46. In the absence of any indication to the contrary in the order for reference, it must be considered that the case in the main proceedings relates to goods and services intended for all consumers. Accordingly, the relevant public in this case must be deemed to be composed of the average consumer, reasonably well-informed and reasonably observant and circumspect (see Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 26).
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68
In that regard, it should be emphasised that, as the Advocate General noted in point 60 of his Opinion, even though Article 8(1) of that directive requires the entire draft of a law containing technical regulations to be communicated to the Commission (see, to that effect, judgment in Commission vItaly, C‑279/94, EU:C:1997:396, paragraphs 40 and 41), the non-applicability which results from the breach of that obligation extends not to all of the provisions of such a law, but only to the technical regulations contained therein.
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25. A special benefit within the meaning of Article 4(2a) of Regulation No 1408/71 is defined by its purpose. It must either replace or supplement a social security benefit and be by its nature social assistance justified on economic and social grounds and fixed by legislation setting objective criteria (see to that effect Case C-20/96 Snares [1997] ECR I-6057, paragraphs 33, 42 and 43, Case C-297/96 Partridge [1998] ECR I-3467, paragraph 34, and Case C-43/99 Leclère and Deaconescu [2001] ECR I-4265, paragraph 32).
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32 As regards, second, special non-contributory benefits, which, according to Annex IIa to Regulation No 1408/71, include the Luxembourg maternity allowance, it is open to the Community legislature when implementing Article 51 of the Treaty to adopt provisions which derogate from the principle of exportability of social security benefits. In particular, as the Court has already accepted, a condition of residence in the State of the competent institution may legitimately be required for the grant of benefits closely linked with the social environment (see Lenoir, paragraph 16, and Snares, paragraph 42).
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56. À cet égard, il ressort d’une jurisprudence constante que la date de référence pour l’application de l’article 108, paragraphe 2, deuxième alinéa, TFUE est celle prévue dans la décision dont l’inexécution est contestée ou, le cas échéant, celle que la Commission a fixée par la suite (arrêt Commission/Italie, EU:C:2013:832, point 30 et jurisprudence citée).
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21. The Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia, Case C‑284/06 Burda [2008] ECR I-4571, paragraph 37, and Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-0000, paragraph 31).
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31. The Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia, Case C‑284/06 Burda [2008] ECR I‑4571, paragraph 37 and case-law cited).
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19 According to the third recital in its preamble, Decision No 1/80 on the development of the Association, which the Council of Association subsequently adopted on 19 September 1980, seeks to improve, in the social field, the treatment accorded to workers and members of their families in relation to the arrangements introduced by Decision No 2/76.
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67
However, it is only in circumstances where the action for annulment would unquestionably have been admissible that the Court has held that a person may not plead the invalidity of an act of the European Union before a national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17 to 25; of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraphs 15 to 25; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 29 to 40; and of 22 October 2002, National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraphs 34 to 39). In numerous other cases, the Court has held that it was not established that the action would unquestionably have been admissible (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34; of 8 March 2007, Roquette Frères, C‑441/05, EU:C:2007:150, paragraphs 35 to 48; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 37 to 52; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 24 to 38; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraphs 27 to 32).
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17 Wiljo refers here to the judgment in Joined Cases 133/85 to 136/85 Rau Lebensmittelwerke and Others v BALM [1987] ECR 2289, in which the Court ruled that the possibility of bringing a direct action under Article 173 of the Treaty against a decision of a Community institution does not preclude the possibility of bringing an action before a national court against a measure adopted by a national authority for the implementation of that decision, on the ground that the latter decision is unlawful.
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55. When determining the scope of the public policy exception provided for in that provision, reference should, according to settled case-law, be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the European Union (see, inter alia, Polat , paragraph 30).
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31. Additionally, in so far as Regulation No 44/2001 replaces, in the relations between Member States, the Brussels Convention, the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent ( Zuid-Chemie , paragraph 18, and eDate Advertising and Others , paragraph 39).
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18. Second, in so far as Regulation No 44/2001 now replaces, in the relations between Member States, the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of Regulation No 44/2001 whenever the provisions of those Community instruments may be regarded as equivalent.
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78. Contrairement à ce que soutient la Commission, une telle omission ne saurait entraîner l’irrecevabilité du quatrième moyen comme ayant été soulevé pour la première fois dans le cadre du pourvoi. En effet, si une partie doit pouvoir soulever une irrégularité de procédure dès lors qu’elle considère qu’une violation des règles applicables est établie, elle ne saurait être tenue de le faire à un stade où les pleins effets de cette violation ne sont pas encore connus. S’agissant en particulier d’un dépassement, par le Tribunal, du délai raisonnable de jugement, la partie requérante qui considère que ce dépassement devant le Tribunal porte atteinte à ses intérêts n’est pas tenue de faire valoir immédiatement cette atteinte. Le cas échéant, elle peut attendre la fin de la procédure afin de connaître la durée totale de celle-ci et de disposer ainsi de tous les éléments nécessaires pour identifier l’atteinte qu’elle estime avoir subie.
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145. It went on to note that natural or legal persons may not rely on an alleged breach of that rule, since it is not intended to ensure protection for individuals (see, to that effect, Case C‑69/89 Nakajima v Council [1991] ECR I‑2069, paragraphs 49 and 50).
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49 With regard to this point, it should be noted that the purpose of the rules of procedure of a Community institution is to organize the internal functioning of its services in the interests of good
administration. The rules laid down, particularly with regard to the organization of deliberations and the adoption of decisions, have therefore as their essential purpose to ensure the smooth conduct of the procedure while fully respecting the prerogatives of each of the members of the institution.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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32. In the case of companies, it should be borne in mind that their registered office for the purposes of Article 58 of the Treaty serves, in the same way as nationality in the case of individuals, as the connecting factor with the legal system of a Member State. Acceptance of the proposition that the Member State of residence may freely apply different treatment merely by reason of the fact that the registered office of a company is situated in another Member State would deprive Article 52 of the Treaty of all meaning. Freedom of establishment thus aims to guarantee the benefit of national treatment in the host Member State, by prohibiting any discrimination based on the place in which companies have their seat (see Test Claimants in Class IV of the ACT Group Litigation , paragraph 43; Denkavit Internationaal and Denkavit France , paragraph 22; and Case C‑284/06 Burda [2008] ECR I-0000, paragraph 77).
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43. In the case of companies, it should be borne in mind that their registered office for the purposes of Article 48 EC serves, in the way same as nationality in the case of individuals, as the connecting factor with the legal system of a Member State. Acceptance of the proposition that the Member State in which a company seeks to establish itself may freely apply different treatment merely by reason of its registered office being situated in another Member State would deprive Article 43 EC of all meaning (see, to that effect, Case 270/83 Commission v France [1986] ECR 273, paragraph 18; Case C-330/91 Commerzbank [1993] ECR I‑4017, paragraph 13; Metallgesellschaft and Others , paragraph 42; and Marks & Spencer , paragraph 37). Freedom of establishment thus aims to guarantee the benefit of national treatment in the host Member State, by prohibiting any discrimination based on the place in which companies have their seat (see, to that effect, Commission v France , paragraph 14, and Saint‑Gobain ZN , paragraph 35).
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49. Such an approach appears moreover to be fully justified by the circumstance that, in practice, it is not always possible for the competent authority to ascertain that the animals have actually suffered, or been injured, as a result of non‑compliance with those provisions.
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60. The above interpretation is also confirmed by the case-law of the Court (see Eddline El-Yassini , paragraph 27, and Pokrzeptowicz-Meyer , paragraphs 21 and 22) relating to the principle of equal treatment as regards conditions of work laid down in the first paragraph of Article 40 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1) and Article 37(1) of the Europe Agreement establishing an association between the European Communities and their Member States and the Republic of Poland, concluded and approved on behalf of the Communities by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1).
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21 In this regard, it must be held that the limb of the sentence which appears in the first indent of Article 37(1) of the Europe Agreement lays down, in clear, precise and unconditional terms, a prohibition preventing each Member State from discriminating in relation to its own nationals, on grounds of their nationality, against Polish nationals covered by that provision as far as their conditions of employment, remuneration and dismissal are concerned. The Polish nationals who are entitled to the benefit of that provision are those who, having been previously granted the right to stay in a Member State, are legally employed there.
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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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22 It is also clear from the Court's case-law (see, to that effect, in particular, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 56; Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 28; Case 242/87 Commission v Council [1989] ECR 1425, paragraph 18; and Case 16/88 Commission v Council [1989] ECR 3457, paragraphs 15 to 19) that, in the system of the Treaty, any implementation of expenditure by the Commission in principle presupposes, in addition to the entry of the relevant appropriation in the budget, an act of secondary legislation (commonly called the `basic act') from which the expenditure derives.
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19 That interpretation, which rules out the possibility that commitments of expenditure might in themselves and irrespective of any substantive decision impose legally binding obligations on the Community vis-à-vis third parties, is, moreover, in conformity with the system of supervision of the implementation of the budget in which the European Parliament has been given, under Article 206b of the Treaty, the power to give a discharge to the Commission, and in which the Court of Auditors is required to assist the European Parliament within the limits defined in Article 206a(2 ) of the Treaty and Article 80 of the Financial Regulation adopted by the Council on 21 December 1977 ( Official Journal 1977, L 356, p . 1 ) in accordance with Article 209 of the Treaty .
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37. Les dispositions nationales de transposition de cette disposition ne sauraient donc limiter leur applicabilité au seul cas où la contestation de la légalité reposerait sur le moyen tiré de l’omission d’une évaluation de l’incidence sur l’environnement. Exclure cette applicabilité dans le cas où, ayant été réalisée, une évaluation de l’incidence sur l’environnement serait entachée de vices, même graves, priverait les dispositions de la directive 85/337 relatives à la participation du public de l’essentiel de leur effet utile. Une telle exclusion serait dès lors contraire à l’objectif visant à garantir un large accès aux instances juridictionnelles tel que visé à l’article 10 bis de cette directive.
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20
That principle is also applicable, subject to certain conditions, where the breach at issue stems from a decision of a court adjudicating at last instance. In the light of the essential role played by the judiciary in the protection of the rights derived by individuals from rules of EU law and of the fact that a court ruling at last instance constitutes, by definition, the last instance before which those individuals can enforce the rights conferred on them by those rules, the Court considers that the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by a breach of EU law attributable to a decision of a court of a Member State adjudicating at last instance (see, to that effect, judgments of 30 September 2003 in Köbler, C‑224/01,EU:C:2003:513, paragraphs 32 to 36 and 59; of 13 June 2006 in Traghetti del Mediterraneo, C‑173/03, EU:C:2006:391, paragraph 31, and of 9 September 2015 in Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 47).
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31. Basing its reasoning in that respect, inter alia, on the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules and on the fact that a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by Community law, the Court infers that the protection of those rights would be weakened – and the full effectiveness of the Community rules conferring such rights would be brought into question – if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance (see Köbler , paragraphs 33 to 36).
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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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25. In that regard, it must be noted that the sign ‘Edi Koblmüller’, which reproduces only a small part of the BergSpechte trade mark, cannot be considered to be identical with that trade mark. A sign is identical with a trade mark only where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer (Case C-291/00 LTJ Diffusion [2003] ECR I-2799, paragraph 54).
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54. In those circumstances, the answer to the question referred must be that Article 5(1)(a) of the directive must be interpreted as meaning that a sign is identical with the trade mark where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer.
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34 It should be noted in this connection that when the same argument was relied on by the applicant in Case C-156/87 Gestetner, cited above, the Court pointed out at paragraph 57 that, with regard to imports of PPCs supplied by Fuji Xerox from Japan, the institutions took the view that Rank Xerox had not produced evidence that it had been led to buy the machines on grounds of self-protection. According to the information obtained the decision was a management decision taken by the Xerox group of companies. However, the volume of those imports was minimal in relation to the entire range of PPCs produced by Rank Xerox within the Community and in relation to the Community market as a whole (1%), and the resale prices were the same as the prices of equivalent machines produced by Rank Xerox.
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43. In particular, the Court has already held that 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 businesses 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, Arblade and Others , paragraph 34, and Joined Cases C-49/98, C‑50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte and Others [2001] ECR I-7831, paragraph 31).
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34 Even if there is no harmonisation 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 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, 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, Säger, cited above, paragraph 15, Vander Elst, cited above, paragraph 16, and Guiot, cited above, paragraph 11).
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71 In that connection, it must be observed that the sectoral pension fund itself determines the amount of the contributions and benefits and that the Fund operates in accordance with the principle of capitalisation.
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21
According to established case-law, it is not for the Court, in the context of a request for a preliminary ruling, to rule on the interpretation of national provisions or to decide whether the referring court’s interpretation of such provisions is correct. The national courts alone are competent to decide on the interpretation of domestic law (judgment of 27 October 2016, Audace and Others, C‑114/15, EU:C:2016:813, paragraph 65 and the case-law cited).
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65
In that regard, apart from the fact that the interpretation of the national legislation given by the French Government does not differ greatly from that given by the referring court, it should also be noted that it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct. Indeed, only the national courts are competent to decide upon the interpretation of domestic law (judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 35 and the case-law cited).
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19 In order to determine whether Eurocontrol' s activities are those of an undertaking within the meaning of Articles 86 and 90 of the Treaty, it is necessary to establish the nature of those activities.
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59 The trade mark owner may therefore oppose any repackaging involving a risk of the product inside the package being exposed to tampering or to influences affecting its original condition. To determine whether that applies, account must be taken, as the Court held in paragraph 10 of the Hoffmann-La Roche judgment, of the nature of the product and the method of repackaging.
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10IN THIS RESPECT THE ANSWER MUST VARY ACCORDING TO THE CIRCUMSTANCES AND IN PARTICULAR ACCORDING TO THE NATURE OF THE PRODUCT AND THE METHOD OF REPACKAGING . DEPENDING ON THE NATURE OF THE PRODUCT REPACKAGING IN MANY CASES INEVITABLY AFFECTS ITS CONDITION , WHILE IN OTHERS REPACKAGING INVOLVES A MORE OR LESS OBVIOUS RISK THAT THE PRODUCT MIGHT BE INTERFERED WITH OR ITS ORIGINAL CONDITION OTHERWISE AFFECTED . NEVERTHELESS , IT IS POSSIBLE TO CONCEIVE OF THE REPACKAGING BEING UNDERTAKEN IN SUCH A WAY THAT THE ORIGINAL CONDITION OF THE PRODUCT CANNOT BE AFFECTED . THIS MAY BE SO WHERE , FOR EXAMPLE , THE PROPRIETOR OF THE TRADE-MARK HAS MARKETED THE PRODUCT IN A DOUBLE PACKAGING AND THE REPACKAGING AFFECTS ONLY THE EXTERNAL PACKAGING , LEAVING THE INTERNAL PACKAGING INTACT , OR WHERE THE REPACKAGING IS INSPECTED BY A PUBLIC AUTHORITY FOR THE PURPOSE OF ENSURING THAT THE PRODUCT IS NOT ADVERSELY AFFECTED . WHERE THE ESSENTIAL FUNCTION OF THE TRADE-MARK TO GUARANTEE THE ORIGIN OF THE PRODUCT IS THUS PROTECTED , THE EXERCISE OF HIS RIGHTS BY THE PROPRIETOR OF THE TRADE-MARK IN ORDER TO FETTER THE FREE MOVEMENT OF GOODS BETWEEN MEMBER STATES MAY CONSTITUTE A DISGUISED RESTRICTION WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 36 OF THE TREATY IF IT IS ESTABLISHED THAT THE USE OF THE TRADE-MARK RIGHT BY THE PROPRIETOR , HAVING REGARD TO THE MARKETING SYSTEM WHICH HE HAS ADOPTED , WILL CONTRIBUTE TO THE ARTIFICIAL PARTITIONING OF THE MARKETS BETWEEN MEMBER STATES .
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49. It is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with Community law or to interpret national legislation or regulations (see Case C‑151/02 Jaeger [2003] ECR I‑8389, paragraph 43, and Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraph 24 and the case-law cited).
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15. A preliminary point to be recalled is that Article 4(1) of the Birds Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I to the directive and that, under Article 4(2), Member States are also to classify as SPAs the breeding, moulting and wintering areas of regularly occurring migratory species not listed in the annex and the staging posts along their migration routes (Case C‑240/00 Commission v Finland [2003] ECR I‑2187, paragraph 16).
Failure to classify the Hanság site as an SPA
– Arguments of the parties
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16. Article 4(1) of the Birds Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I (Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraph 55). Under Article 4(2), Member States are also to classify as SPAs the breeding, moulting and wintering areas and staging posts along the migration routes of migratory species (see, in that regard, Case C-166/97 Commission v France [1999] ECR I-1719, paragraphs 14 and 15, and Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 16).
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24 Legislation of the kind at issue in the main proceedings is not such as to preclude or deter a worker from ending his contract of employment in order to take a job with another employer, because the entitlement to compensation on termination of employment is not dependent on the worker's choosing whether or not to stay with his current employer but on a future and hypothetical event, namely the subsequent termination of his contract without such termination being at his own initiative or attributable to him.
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39
The failure to apply those arrangements to spare parts, taken from end‑of-life vehicles purchased from private individuals, would be contrary to the objective of the special margin scheme which seeks, as is apparent from recital 51 of Directive 2006/112, to avoid double taxation and distortions of competition between taxable persons in the area of second-hand goods (see, to that effect, judgments of 1 April 2004, Stenholmen, C‑320/02, EU:C:2004:213, paragraph 25; of 8 December 2005, Jyske Finans, C‑280/04, EU:C:2005:753, paragraph 37; and of 3 March 2011, Auto Nikolovi, C‑203/10, EU:C:2011:118, paragraph 47).
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37. In that regard, it is appropriate to point out that the third and fifth recitals to Directive 94/5 show the intention of the Community legislature to avoid double taxation and distortions of competition (see Case C-320/02 Stenholmen [2004] ECR I‑3509, paragraph 25).
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29. The Court must therefore hold that Article 143ba of Regulation No 1782/2003 requires the new Member States to apply objective and non-discriminatory criteria when granting a separate sugar payment.
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24. It must be borne in mind that it follows from the need for uniform application of Community law and from the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, inter alia, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-287/98 Linster [2000] ECR I-6917, paragraph 43; Case C-170/03 Feron [2005] ECR I-2299, paragraph 26; and Case C-316/05 Nokia [2006] ECR I-12083, paragraph 21).
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26. It follows from the need for uniform application of Community law and the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community (Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-287/98 Linster [2000] ECR I-6917, paragraph 43, and Case C‑357/98 Yiadom [2000] ECR I‑9265, paragraph 26).
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13 AS THE COURT HAS REPEATEDLY HELD , THE DECISIVE CRITERION FOR THE CUSTOMS CLASSIFICATION OF GOODS MUST BE SOUGHT GENERALLY IN THEIR OBJECTIVE CHARACTERISTICS AND QUALITIES , AS DEFINED IN THE RELEVANT HEADING OF THE COMMON CUSTOMS TARIFF AND IN THE NOTES TO THE SECTIONS OR CHAPTERS .
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117
As regards the assessment by the General Court of applications made by a party for measures of organisation of procedure or measures of inquiry, it must be recalled that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it (see judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 67, and of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 77). The sufficiency of the evidence before it is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the inaccuracy of the findings of the General Court is apparent from the documents in the case-file (see, inter alia, judgment of 7 October 2004, Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 76).
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67. In that regard, it should be borne in mind that the Court of First Instance is the sole judge of whether the information available concerning the cases before it needs to be supplemented (see, in particular, Joined Cases C-57/00 P and C-61/00 P Freistaat Sachsen and Others v Commission [2003] ECR I-9975, paragraph 47, and Case C-136/02 P Mag Instrument v OHIM [2004] ECR I-0000, paragraph 76).
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55. Finally, with respect to the causal link, under Article 3(6) of the basic regulation the EU institutions must demonstrate that the volume and/or price levels identified pursuant to Article 3(3) are responsible for an impact on the Union industry as provided for in Article 3(5) and that that impact exists to a degree which enables it to be classified as material.
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60. In that regard, it must be recalled that, as a general rule, it is not for the Court of Justice to rule on the question whether the labelling of certain products is likely to mislead the purchaser or consumer or to determine whether a sales description is potentially misleading. That task is for the national court (see, inter alia, Case C‑210/96 Gut Springenheide and Tusky [1998] ECR I‑4657, paragraph 30, and Case C‑366/98 Geffroy [2000] ECR I‑6579, paragraphs 18 and 19). When giving a preliminary ruling on a reference, however, the Court may, in appropriate cases, give clarifications to guide the national court in its decision ( Geffroy , paragraph 20).
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19 The Court would act otherwise only if the information at the Court's disposal appeared to it to be sufficient and the solution is clear (see Case C-210/96 Gut Springenheide and Tusky v Oberkreisdirektor Steinfurt [1998] ECR I-4657, paragraph 30). In this case, however, as the Advocate General has pointed out in paragraphs 32 to 35 of his Opinion, the Court does not have the necessary information to rule on this point.
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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. In that regard, the Court has already ruled that it is apparent both from the wording of Directive 1999/70 and of the framework agreement, as well as from their background and purpose, that the provisions laid down can apply also to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies (Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraphs 54 to 57; Case C-53/04 Marrosu and Sardino [2006] ECR I-7213, paragraphs 40 to 43, and Case C-180/04 Vassallo [2006] ECR I-7251, paragraphs 32 to 35).
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40. The provisions of those two instruments contain nothing to permit the inference that their scope is limited to fixed-term contracts concluded by workers with employers in the private sector alone ( Adeneler and Others , paragraph 55).
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36. However, difficulties in establishing distinctiveness which may be associated with certain categories of trade marks because of their very nature, such as those consisting of advertising slogans – difficulties which it is legitimate to take into account – do not justify laying down specific criteria supplementing or derogating from the criterion of distinctiveness as interpreted in the case-law referred to in paragraphs 32 to 34 of this judgment. The Court of First Instance was therefore right to annul the contested decision for imposing a different and stricter criterion for assessing the distinctiveness of trade marks consisting of advertising slogans.
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85 So, in considering whether Article 100a was the proper legal basis, the Court must verify whether the measure whose validity is at issue in fact pursues the objectives stated by the Community legislature (see, in particular, Spain v Council, cited above, paragraphs 25 to 41, and Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 10 to 21).
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17 Consequently, the Member States may, in certain circumstances, adopt or maintain measures constituting an obstacle to free movement. Article 57(2) of the Treaty authorizes the Community to eliminate obstacles of that kind in particular by coordinating the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons. Since coordinating measures are concerned, the Community is to have regard to the public interest aims of the various Member States and to adopt a level of protection for that interest which seems acceptable in the Community.
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39. As a preliminary point, it should be noted that the Sixth Directive does not contain a rule generally exempting all services linked to the practice of sport and physical education (see, to that effect, Case C‑150/99 Stockholm Lindöpark [2001] ECR I‑493, paragraph 22).
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18 Lastly, the Court has already recognized that, where an instrument contains limitations or derogations which are temporary (judgments in Zuckerfabrik Watenstedt, cited above, and Compagnie française commerciale et financière, cited above, paragraphs 12 to 15) or territorial in nature (judgment in Joined Cases 103/78 to 109/78 Société des Usines de Beauport v Council [1979] ECR 17, paragraphs 15 to 19), they form an integral part of the provisions as a whole within which they are found and, in the absence of any misuse of powers, are of the same general nature as those provisions.
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12 THE FACT THAT A TRANSITIONAL PROVISION IS APPLICABLE ONLY TO CERTAIN SITUATIONS ARISING BEFORE A DATE FIXED BY IT AND, THEREFORE, OFTEN ESTABLISHED BEFORE IT COMES INTO FORCE, DOES NOT PREVENT THAT PROVISION FROM BEING AN INTEGRAL PART OF THE FORMER AND NEW PROVISIONS WHICH IT IS DESIGNED TO RECONCILE AND, CONSEQUENTLY, FROM PARTAKING OF THEIR GENERAL NATURE .
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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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37
In the present case, as regards the principle of equivalence, as the Court found in the case giving rise to the judgment of 8 May 2008 in Ecotrade (C‑95/07 and C‑96/07, EU:C:2008:267, paragraph 47), which concerned in particular the same limitation period as that at issue in the main proceedings, it does not appear from the file, nor has it been argued before the Court, that the limitation period provided for in Article 19(1) of Decree No 633 does not comply with that principle.
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47. As regards the principle of equivalence, it does not appear from the file, nor has it been argued before the Court, that the limitation period provided for in Article 19(1) of the DPR No 633/72 does not comply with that principle.
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98 Secondly, it follows from Articles 1 and 7 of Regulation No 2299/89 that, subject to reciprocity, that regulation also applies to nationals of non-member countries, where they offer for use or use a CRS in Community territory.
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33 The Court has consistently held that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions (judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).
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5 ALL TRADING RULES ENACTED BY MEMBER STATES WHICH ARE CAPABLE OF HINDERING, DIRECTLY OR INDIRECTLY, ACTUALLY OR POTENTIALLY, INTRA-COMMUNITY TRADE ARE TO BE CONSIDERED AS MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS .
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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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75. The Court has thus acknowledged in particular that, in the area of games and bets, excesses in which have damaging social consequences, national regulations seeking to prevent the stimulation of demand by limiting the human passion for gambling could be justified ( Schindler , paragraphs 57 and 58; Läärä and Others , paragraphs 32 and 33; and Zenatti , paragraphs 30 and 31).
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57 According to the information provided by the referring court, the United Kingdom legislation, before its amendment by the 1993 Act establishing the national lottery, pursued the following objectives: to prevent crime and to ensure that gamblers would be treated honestly; to avoid stimulating demand in the gambling sector which has damaging social consequences when taken to excess; and to ensure that lotteries could not be operated for personal and commercial profit but solely for charitable, sporting or cultural purposes.
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72. In other situations, on the other hand, the nature and extent of the company’s assets would make it easy to carry out a cross-border tracing of the individual assets for which a capital gain was ascertained at the time when the company transferred its place of effective management to another Member State.
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44. In the present case, the fact remains that a general prohibition on the sale or use of equipment designed to increase the power and/or speed of mopeds, as in the case in the main proceedings, may impede the free movement of these goods (see, by analogy, Case C-110/05 Commission v Italy [2009] ECR I‑519, paragraph 58). Such an obstacle is prohibited by Article 34 TFEU unless it can be justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet imperative requirements.
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58. It follows that the prohibition laid down in Article 56 of the Highway Code, to the extent that its effect is to hinder access to the Italian market for trailers which are specially designed for motorcycles and are lawfully produced and marketed in Member States other than the Italian Republic, constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, unless it can be justified objectively.
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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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98. In paragraph 122 of its judgment, the General Court stated that it followed from paragraphs 73 to 79 of ThyssenKrupp v Commission that, by that ground of the cross-appeal, the Commission had not intended to call into question the General Court’s recognition of the transfer of liability on the basis of the statement of 23 July 1997 but only the General Court’s subsequent conclusion that that statement could not be interpreted as also implying that the appellant had waived its right to be heard regarding the acts of which Thyssen Stahl was accused.
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73. The Commission contends that the Court of First Instance adopted an overly restrictive interpretation of the statement made on 23 July 1997 in which TKS agreed to be held responsible for the conduct attributed to Thyssen as from 1993, even though the latter’s business in the stainless steel flat products sector had not been transferred to it until 1 January 1995.
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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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36
EU law does not preclude national legislation which, in certain cases, permits the regularisation of operations or measures which are unlawful in the light of EU law. However, such a possibility is subject to the condition that it does not offer the persons concerned the opportunity to circumvent EU law or dispense with applying it, and that it should remain the exception (see judgment of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, point 57).
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57. While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.
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17 The Court has consistently held that the entire system of reference quantities is based on the general principle laid down by Article 7 of Regulation No 857/84 and Article 7 of Regulation No 1546/88, that a reference quantity is allocated in relation to land and must therefore be transferred with that land (see, to that effect, Case C-463/93 Katholische Kirchengemeinde St Martinus Elten v Landwirtschtskammer Rheinland [1997] ECR I-0000, paragraph 24, Case C-98/91 Herbrink v Netherlands [1994] ECR I-223, paragraph 13, and Case C-189/92 Le Nan v Coopérative Laitière de Ploudaniel [1994] ECR I-261, paragraph 12).
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103. Whilst the Member States thus have a discretion, Article 6 of the NEC Directive nevertheless involves limits on its exercise, which are capable of being relied upon before the national courts, relating to the appropriateness of the body of policies and measures adopted or envisaged within the framework of the respective national programmes to the objective of limiting, by the end of 2010 at the latest, emissions of the pollutants covered to amounts not exceeding the ceilings laid down for each Member State (see, to this effect, Janecek , paragraph 46).
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46. It must be noted in this regard that, while the Member States thus have a discretion, Article 7(3) of Directive 96/62 includes limits on the exercise of that discretion which may be relied upon before the national courts (see, to that effect, Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 59), relating to the adequacy of the measures which must be included in the action plan with the aim of reducing the risk of the limit values and/or alert thresholds being exceeded and the duration of such an occurrence, taking into account the balance which must be maintained between that objective and the various opposing public and private interests.
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26
At the outset, it must be observed that the questions referred for a preliminary ruling are based on the premiss, which Polbud disputes, that Polbud did not intend to transfer its real head office to Luxembourg.
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Or, dans le cadre de la procédure en manquement visée à l’article 258 TFUE, lorsque la Commission a fourni suffisamment d’éléments faisant apparaître certains faits situés sur le territoire de l’État membre défendeur, il incombe à celui-ci de contester de manière substantielle et détaillée les données ainsi présentées et les conséquences qui en découlent (arrêts du 4 mars 2010, Commission/Italie, C‑297/08, EU:C:2010:115, point 102 et jurisprudence citée, ainsi que du 11 décembre 2014, Commission/Grèce, C‑677/13, non publié, EU:C:2014:2433, point 70).
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102. It follows, inter alia, that, where the Commission has adduced sufficient evidence to establish certain circumstances in the territory of the defendant Member State, it is for that Member State to challenge in substance and in detail the data produced and the inferences drawn (see, to that effect, Case C‑365/97 Commission v Italy , paragraphs 84 and 86, and judgment of 22 December 2008 in Case C‑189/07 Commission v Spain , paragraph 82).
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53. La Cour a ainsi jugé que l’impôt prélevé sur les successions, lesquelles consistent en une transmission à une ou à plusieurs personnes du patrimoine laissé par une personne décédée, comme le traitement fiscal des donations, que celles-ci portent sur des sommes d’argent, des biens immeubles ou des biens meubles, relèvent des dispositions du traité relatives aux mouvements de capitaux, à l’exception des cas où leurs éléments constitutifs se cantonnent à l’intérieur d’un seul État membre (voir, en ce sens, arrêt Mattner, EU:C:2010:216, point 20 ainsi que jurisprudence citée).
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48
In paragraphs 16, 17 and 23 of the judgment under appeal, the General Court noted that it follows from settled case-law of the Court of Justice that in order for the European Union to incur non-contractual liability, a number of conditions must be satisfied, which include the condition that the conduct alleged against the institutions be unlawful on account of a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, judgment of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 106, 172 and 173).
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172. The Court has therefore held in particular that, in view of the second paragraph of Article 288 EC, the Community does not incur liability on account of a legislative measure which involves choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred (see, inter alia, Joined Cases 9/71 and 11/71 Compagnie d’approvisionnement, de transport et de crédit and Grands Moulins de Paris v Commission [1972] ECR 391, paragraph 13; Bayerische HNL Vermehrungsbetriebe and Others v Council and Commission , paragraph 4; Case 50/86 Les Grands Moulins de Paris v EEC [1987] ECR 4833, paragraph 8; and Case C-119/88 AERPO and Others v Commission [1990] ECR I‑2189, paragraph 18).
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15 It should be recalled in that regard that the rules laid down in Articles 77 and 78 are designed to determine the Member State whose legislation governs the grant of benefits for dependent children of pensioners and for orphans, which are then granted, in principle, in accordance with the legislation of that Member State alone. It follows from Articles 77(2)(b)(i) and 78(2)(b)(i) that where a pensioner or a deceased worker has been subject to the laws of more than one Member State, the benefits in question are to be paid in accordance with those of the State in whose territory the pensioner, or the orphan of the deceased worker, resides.
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33
The deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities and ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (judgments of 22 February 2001, Abbey National, C‑408/98, EU:C:2001:110, paragraph 24, and of 3 March 2005, Fini H, C‑32/03, EU:C:2005:128, paragraph 25).
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25. Such an interpretation is justified by the deduction system, with regard to which the Court has repeatedly held that it is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, to that effect, Rompelman , paragraph 19; Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15; Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 44; and Case C-98/98 Midland Bank [2000] ECR I-4177, paragraph 19; and Abbey National , paragraph 24).
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65. Au rang des facteurs pertinents à cet égard figurent notamment des éléments tels que la gravité du manquement, la durée de persistance de celui-ci depuis l’arrêt l’ayant constaté, les conséquences du manquement sur les intérêts publics et privés concernés ainsi que l’attitude de l’État membre défendeur (voir arrêt Commission/France, C‑121/07, EU:C:2008:695, point 64 et jurisprudence citée).
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33. It must therefore be held that the facilities required for that purpose are, by means of the offered services of repair and upgrading, made available to RFCT in a condition which permits their use for the agreed purposes and that the provision of access to those facilities for that specific end constitutes the supply which is characteristic of the transaction at issue in the main proceedings (see inter alia, by analogy, the judgments in Part Service , C‑425/06, EU:C:2008:108, paragraphs 51 and 52; Field Fisher Waterhouse , C‑392/11, EU:C:2012:597, paragraph 23; and RR Donnelley Global Turnkey Solutions Poland , C‑155/12, EU:C:2013:434, paragraph 22).
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22. That is also the case where one or more supplies constitute a principal supply and the other supply or supplies constitute one or more ancillary supplies which share the tax treatment of the principal supply. In particular, a supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied (see, to that effect, Case C‑349/96 CPP [1999] ECR I‑973, paragraph 30; Joined Cases C‑497/09, C‑499/09, C‑501/09 and C‑502/09 Bog and Others [2011] ECR I‑1457, paragraph 54; and Field Fisher Waterhouse , paragraph 17).
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13 The provisions of the Treaty relating to the free movement of persons are thus intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community, and preclude national legislation which might place Community citizens at a disadvantage when they wish to extend their activities beyond the territory of a single Member State .
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62. Admittedly, the Court of Justice has held that, for the purposes of setting the amount of the fine, the market shares held by an undertaking are relevant in order to determine what influence it may exert on the market (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 139).
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139 It follows that it is permissible, for the purpose of determining the fine, to have regard both to the total turnover of the undertaking, which constitutes 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 (Musique Diffusion française and Others v Commission, cited above, paragraph 121). Although an undertaking's market shares cannot be a decisive factor in concluding that an undertaking belongs to a powerful economic entity, they are nevertheless relevant in determining the influence which it may exert on the market.
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39. As regards Article 15(2) of the Charter, it must be borne in mind that Article 52(2) thereof, which provides that rights recognised by the Charter for which provision is made in the treaties are to be exercised under the conditions and within the limits defined therein. In that vein, Article 15(2) of the Charter reiterates inter alia the free movement of workers guaranteed by Article 45 TFEU, as confirmed by the explanations relating to that provision.
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47. Nor can the principles of legal certainty and protection of legitimate expectations preclude supervisory measures such as those at issue in the main proceedings. The first sentence of Article 7(1) of Regulation No 536/93 read in conjunction with the eighth recital in the preamble to that regulation shows in a clear and precise manner that the list of measures set out in Article 7 is not exhaustive and that the Member States are indeed required, where necessary, to take additional measures (see, with regard to the criteria governing the principle of legal certainty, Case C‑94/05 Emsland-Stärke [2006] ECR I-0000, paragraph 43). Moreover, the Court has held that the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of Community law or the conduct of a national authority which is consistent with such a provision (see in this regard Emsland-Stärke, paragraph 31). A trader cannot therefore legitimately expect not to be subject to supplementary supervisory measures.
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31. The principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of Community law; nor can the conduct of a national authority responsible for applying Community law, which acts in breach of that law, give rise to a legitimate expectation on the part of a trader of beneficial treatment contrary to Community law (Case 316/86 Krücken [1988] ECR 2213, paragraph 24, and Joined Cases C-31/91 to C-44/91 Lageder and Others [1993] ECR I-1761, paragraph 35).
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20 The Court went on to state, however, that the amendment made to Article 17 makes it possible to presume that such consent exists where commercial usages of which the parties are or ought to have been aware exist in this regard in the relevant branch of international trade or commerce (MSG, paragraphs 19 and 20).
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49. Next, the fact that aid also has beneficial effects for the region or the economic sector concerned does not necessarily imply that it must be considered to be compatible with the common market. It follows from Article 87(3)(c) EC that, where an aid measure affects trading conditions to an extent contrary to the common interest, it cannot be declared compatible with the common market, irrespective of its possible beneficial effects. However, when assessing the effects on trade, the Commission must take into consideration all the characteristics of the measure and the market concerned (see Case 47/69 France v Commission [1970] ECR 487, paragraphs 7 to 9).
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7 IN ORDER TO DETERMINE WHETHER AN AID " AFFECTS TRADE BETWEEN MEMBER STATES ", " DISTORTS OR THREATENS TO DISTORT COMPETITION BY FAVOURING CERTAIN UNDERTAKINGS OR THE PRODUCTION OF CERTAIN GOODS " AND " ADVERSELY AFFECTS TRADING CONDITIONS TO AN EXTENT CONTRARY TO THE COMMON INTEREST ", IT IS NECESSARY TO CONSIDER ALL THE LEGAL AND FACTUAL CIRCUMSTANCES SURROUNDING THAT AID, IN PARTICULAR WHETHER THERE IS AN IMBALANCE BETWEEN THE CHARGES IMPOSED ON THE UNDERTAKINGS OR PRODUCERS CONCERNED ON THE ONE HAND AND THE BENEFITS DERIVED FROM THE AID IN QUESTION ON THE OTHER .
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31. Il convient de relever que les cas dans lesquels il est permis de limiter l’obligation de paiement des institutions de garantie, tels que prévus par l’article 4 de la directive 80/987, telle que modifiée, doivent faire l’objet d’une interprétation stricte (voir, en ce sens, arrêt van Ardennen, précité, point 34).
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64. In paragraph 165 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 83 to 111).
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107 Wacker-Chemie and Hoechst submit that the order to terminate the infringement presupposes the existence of proof that the infringement was continuing at the time of adoption of the PVC II decision and that, in the absence of such proof, the legal basis of that order had been eliminated as a result of the passage of time. They further assert that they had definitively terminated their activity on the PVC market before the adoption of the PVC II decision, and could not therefore be required to terminate any infringement.
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30. It must also be pointed out, first, that the right to deduct forms an integral part of the VAT mechanism and in principle cannot be limited ( Bockemühl , paragraph 38, and Case C-368/09 Pannon Gép Centrum [2010] ECR I-7467, paragraph 37 and the case-law cited).
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26. In the perspective of a single market and in order to permit the attainment of the objectives thereof, Article 49 EC precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see, inter alia , Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Smits and Peerbooms , cited above, paragraph 61).
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61 According to settled case-law, Article 59 of the Treaty precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Kohll, paragraph 33).
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28. Il ressort des considérants 3, 8 et 10 de la directive 95/46 que le législateur de l’Union a entendu faciliter la libre circulation des données à caractère personnel en rapprochant les législations des États membres tout en sauvegardant les droits fondamentaux des personnes, notamment le droit à la protection de la vie privée, et en garantissant un niveau élevé de protection dans l’Union. L’article 1 er de cette directive prévoit ainsi que les États membres doivent assurer la protection des libertés et des droits fondamentaux des personnes physiques, notamment de leur vie privée, à l’égard du traitement des données à caractère personnel (arrêts Huber, précité, point 47, ainsi que du 24 novembre 2011, ASNEF et FECEMD, C‑468/10 et C‑469/10, Rec. p. I‑12181, point 25).
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55. In accordance with settled case‑law, such a restriction is permissible only if it is justified by an overriding reason in the public interest. It is further necessary, in such a case, that the restriction be appropriate for ensuring the attainment of the objective in question and not go beyond what is necessary to attain that objective (see Case C‑371/10 National Grid Indus [2011] ECR I‑12273, paragraph 42, and Case C‑250/08 Commission v Belgium [2011] ECR I‑12341, paragraph 51).
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42. According to settled case-law, a restriction of freedom of establishment is permissible only if it is justified by overriding reasons in the public interest. It is further necessary, in such a case, that it should be appropriate to ensuring the attainment of the objective in question and not go beyond what is necessary to attain that objective (Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 35; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 47; Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 64; and Case C‑303/07 Aberdeen Property Fininvest Alpha [2009] ECR I‑5145, paragraph 57).
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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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39. The Austrian Government ' s argument that, in the absence of a mathematically certain method of calculating tolls or user charges, Articles 7(b) of Directive 93/89 and 7(4) of Directive 1999/62 may not be relied upon cannot be accepted. According to the Court ' s settled case-law, discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Commission v Austria , paragraph 70). That criterion is sufficient to establish whether the prohibition of discrimination laid down in those provisions has been infringed in the case in the main proceedings, by making a comparison of the tolls charged for the various journeys under consideration ( Commission v Austria , paragraphs 79 to 88, 112 and 115).
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81 That finding is confirmed by an examination of the legislative background to the two tariff changes at issue. The resolution of the regional Parliament of the Land of Tyrol, of 17 May 1995, which gave rise to those tariff changes, emphasised the need to protect domestic hauliers (heimischen Frächter) from the drastic charges deriving from those tariff changes.
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54 In view of the specific features of the various schemes, Regulation No 3887/92 provides for sanctions graded according to the seriousness of the irregularity committed. Whilst the penalty imposed on a farmer who has made a declaration which overstates his set-aside area or forage area by more than 20% is one of the heaviest established by that regulation, even heavier penalties, namely exclusion from the aid scheme concerned for the calendar year in question for farmers who have made a false declaration as a result of serious negligence and the loss of all aid for a period of two years in the case of those who have intentionally made a false declaration, have been provided for by the third subparagraph of Article 9(2), irrespective of the extent of the overstatement found.
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51. Moreover, neither the tax reasons nor the fact that the same transactions could have been carried out by providers established in the territory of the Member State in which the taxpayer is established warrant, in and of themselves, the conclusion that the transactions in question are not genuine and proper (see, to that effect, Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 69).
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69. On the other hand, as pointed out by the Advocate General in point 103 of his Opinion, the fact that the activities which correspond to the profits of the CFC could just as well have been carried out by a company established in the territory of the Member State in which the resident company is established does not warrant the conclusion that there is a wholly artificial arrangement.
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80. The answer to the second question submitted for a preliminary ruling must accordingly be that an economic activity by which a business purchases debts, assuming the risk of the debtors' default, and, in return, invoices its clients in respect of commission, constitutes "debt collection and factoring" within the meaning of the final clause of Article 13B(d)(3) of the Sixth Directive and is therefore excluded from the exemption laid down by that provision.
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116. However, the existence of such alternative solutions does not negate the existence of a restriction of the free movement of goods (see, to that effect, Case C‑320/03 Commission v Austria , paragraph 67). The section of the A 12 motorway is one of the principal land transport routes between southern Germany and northern Italy. By forcing the undertakings concerned to seek viable alternative solutions for the transport of the goods covered by the contested regulation, the sectoral traffic prohibition is liable to have a substantial effect on the transit of goods between northern Europe and northern Italy (see, to that effect, Case C‑320/03 Commission v Austria , paragraphs 66 and 68).
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67. The fact that, as the Republic of Austria argues, there are alternative routes or other means of transport capable of allowing the goods in question to be transported does not negate the existence of an obstacle. It has been established in the case-law since the judgment of 11 July 1974 in Case 8/74 Dassonville [1974] ECR 837, paragraph 5, that Articles 28 EC and 29 EC, taken in their context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to trade flows in intra-Community trade (see Case C‑112/00 Schmidberger [2003] ECR I-5659, paragraph 56).
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31. It follows from all of the foregoing that Article 43(1) of Regulation No 44/2001 must be interpreted as meaning that a creditor of a debtor cannot lodge an appeal against a decision on a request for a declaration of enforceability if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability.
Costs
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29. Furthermore, in accordance with the case-law, encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular when the promotion of access of young people to a profession is involved (Joined Cases C-250/09 and C-268/09 Georgiev [2010] ECR I-11869, paragraph 45, and Fuchs and Köhler , paragraph 49).
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49. It must be noted that, according to the case-law, encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular when the promotion of access of young people to a profession is involved ( Georgiev , paragraph 45). The Court has, moreover, held that the mix of different generations of employees can also contribute to the quality of the activities carried out, inter alia by promoting the exchange of experience (see, to that effect, in relation to teaching staff and researchers, Georgiev , paragraph 46).
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41. En tenant compte de l’effet utile des directives 89/665 et 92/13, la Cour a précisé qu’un délai raisonnable doit s’écouler entre le moment où la décision d’attribution du marché est notifiée aux soumissionnaires évincés et la conclusion du contrat, afin de permettre à ces derniers, notamment, d’introduire une demande de mesures provisoires jusqu’à ladite conclusion (arrêts Commission/Autriche, précité, point 23, et du 3 avril 2008, Commission/Espagne, C‑444/06, Rec. p. I-2045, point 39).
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27 The test for establishing the existence of a transfer within the meaning of Directive 77/187 is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (Case 24/85 Spijkers [1986] ECR 1119, paragraphs 11 and 12, and Case C-234/98 Allen and Others [1999] ECR I-8643, paragraph 23).
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11 THAT VIEW MUST BE ACCEPTED . IT IS CLEAR FROM THE SCHEME OF DIRECTIVE NO 77/187 AND FROM THE TERMS OF ARTICLE 1 ( 1 ) THEREOF THAT THE DIRECTIVE IS INTENDED TO ENSURE THE CONTINUITY OF EMPLOYMENT RELATIONSHIPS EXISTING WITHIN A BUSINESS , IRRESPECTIVE OF ANY CHANGE OF OWNERSHIP . IT FOLLOWS THAT THE DECISIVE CRITERION FOR ESTABLISHING WHETHER THERE IS A TRANSFER FOR THE PURPOSES OF THE DIRECTIVE IS WHETHER THE BUSINESS IN QUESTION RETAINS ITS IDENTITY .
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39 Accordingly, the Member States have no power to make conditional or restrict the application of the precise and unconditional rights which Decision No 1/80 grants to Turkish nationals who satisfy its conditions (Sevince, paragraph 22 and Kus, paragraph 31, cited above).
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26. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the Community act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (see, to that effect, Case 6/71 Rheinmühlen Düsseldorf [1971] ECR 823, paragraph 14; Joined Cases 117/76 and 16/77 Ruckdeschel and Others [1977] ECR 1753, paragraph 8; Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraph 74; and Joined Cases C‑364/95 and C‑365/95 T. Port [1998] ECR I‑1023, paragraph 83).
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74 However, such a difference in treatment appears to be inherent in the objective of integrating previously compartmentalized markets, bearing in mind the different situations of the various categories of economic operators before the establishment of the common organization of the market. The Regulation is intended to ensure the disposal of Community production and traditional ACP production, which entails the striking of a balance between the two categories of economic operators in question.
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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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31
Concerning, fourthly, the question whether the transaction transferring ownership of immovable property to a public entity — in this instance, the transfer of land to a municipality — in payment of tax arrears can be considered to have been made for consideration, it should be noted that a supply of goods is made ‘for consideration’, within the meaning of Article 2(1)(a) of the VAT Directive, only if there is a legal relationship between the supplier and the purchaser entailing reciprocal performance, the price received by the supplier constituting the value actually given in return for the goods supplied (judgments of 27 April 1999, Kuwait Petroleum, C‑48/97, EU:C:1999:203, paragraph 26, and of 21 November 2013, Dixons Retail, C‑494/12, EU:C:2013:758, paragraph 32).
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32. Dans ce contexte, la Cour a jugé qu’une livraison de biens n’est effectuée «à titre onéreux», au sens des articles 2, point 1, de la sixième directive et 2, paragraphe 1, sous a), de la directive 2006/112, et n’est dès lors taxable, que s’il existe entre le fournisseur et le bénéficiaire un rapport juridique au cours duquel des prestations réciproques sont échangées, la rétribution perçue par le fournisseur constituant la contre-valeur effective du bien livré au bénéficiaire (voir, notamment, en matière de prestations de services, arrêts précités Tolsma, point 14, et GFKL Financial Services, point 18).
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13 THE FACT THAT IN THIS CASE THE ACTION PENDING BEFORE THE NATIONAL COURT DOES NOT CONCERN THE ACTUAL REMOVAL OF THE WRECK BUT THE COSTS INVOLVED IN THAT REMOVAL AND THAT THE NETHERLANDS STATE IS SEEKING TO RECOVER THOSE COSTS BY MEANS OF A CLAIM FOR REDRESS AND NOT BY ADMINISTRATIVE PROCESS AS PROVIDED FOR BY THE NATIONAL LAW OF OTHER MEMBER STATES CANNOT BE SUFFICIENT TO BRING THE MATTER IN DISPUTE WITHIN THE AMBIT OF THE BRUSSELS CONVENTION .
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38. Since the wording of Article 107 of Regulation No 574/72 is unequivocal as to the relationship between paragraphs 1 and 6 thereof, the arguments based on the greater convenience of the method referred to in Article 107(1) of that regulation cannot prevail against such a wording (see, to that effect, Grisvard and Kreitz , paragraphs 23 and 25).
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23 The cases to which the first method is stated to be applicable do not include Article 71(1)(a)(ii) of Regulation No 1408/71, which relates to unemployed frontier workers.
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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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12. In that regard, it must be borne in mind that, on the basis of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), the amended version of which was consolidated by the Audiovisual Media Services Directive, the Court has already held that such a directive does not completely harmonise the rules relating to the areas to which it applies, but that it lays down minimum rules for broadcasts which emanate from the European Union and which are intended to be received within it (see Case C‑412/93 Leclerc-Siplec [1995] ECR I‑179, paragraphs 29 and 44; Case C‑222/07 UTECA [2009] ECR I‑1407, paragraph 19; and Joined Cases C‑244/10 and C‑245/10 Mesopotamia Broadcast and Roj TV [2011] ECR I‑8777, paragraph 34).
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19. Finally, it should be recalled that the Directive does not completely harmonise the rules relating to the areas which it covers, but that it lays down minimum rules for broadcasts which emanate from the European Community and which are intended to be received within it (see, to that effect, Case C‑412/93 Leclerc-Siplec [1995] ECR I‑179, paragraphs 29 and 44, and Joined Cases C‑34/95 to C‑36/95 De Agostini and TV-Shop [1997] ECR I‑3843, paragraph 3).
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40 As regards, second, the existence of a functional link, it should be noted, first of all, that the official of the regional finance authority who is the second member of the appeal chamber drawn from the tax authority continues, in addition, to pursue his activities within that authority and is, in that capacity, subject to the directions of his hierarchical superiors.
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66. As to those submissions, it is apparent from the Court’s case-law that national legislation is appropriate for securing attainment of the objective relied upon only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (see Joined Cases C-338/04, C-359/04 and C-360/04 Placanica and Others [2007] ECR I-1891, paragraphs 53 and 58; Case C-500/06 Corporación Dermoestética [2008] ECR I-0000, paragraphs 39 and 40; and Hartlauer , paragraph 55).
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55. First, it must be recalled that national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I‑1891, paragraphs 53 and 58, and Case C‑500/06 Corporación Dermoestética [2008] ECR I‑0000, paragraphs 39 and 40).
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20. It follows from the foregoing that, in order to decide which court has jurisdiction to hear and determine a specific action brought against the Community seeking compensation for damage, it is necessary to determine whether the action in question concerns the Community’s contractual liability or its non-contractual liability.
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39 In addition, the Court has held, with regard to the integrated system established by Regulations Nos 3508/92 and 3887/92, that an effective administrative and control procedure requires the information to be provided by an applicant for aid to be complete and accurate from the outset in order that he may make a proper application for the grant of compensatory payments and avoid the imposition of penalties (see, to that effect, Case C-369/98 Fisher [2000] ECR I-6751, paragraphs 27 and 28, and Case C-63/00 Schilling and Nehring [2002] ECR I-4483, paragraph 34).
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28 It must be observed, furthermore, that an applicant for aid has, in the context of the application of Regulation No 3508/92, an essential and legitimate interest in being able to procure the information necessary to make a proper application for the grant of compensatory payments and to avoid the imposition of penalties.
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8 The Court has consistently held (see in particular the judgments in Case 8/81 Becker v Finanzamt Muenster-Innenstadt [1982] ECR 53 and Case 103/88 Fratelli Costanzo v Commune di Milano [1989] ECR 1839) that wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where the State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly.
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54. In that context, it must be recalled that the cooperation between the national courts and the Court of Justice established by Article 267 TFEU is based on a clear division of responsibilities. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice (see, to that effect, Placanica and Others , paragraph 36, and Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 37).
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36. Admittedly, as regards the division of responsibilities under the cooperative arrangements established by Article 234 EC, the interpretation of provisions of national law is a matter for the national courts, not for the Court of Justice, and the Court has no jurisdiction, in proceedings brought on the basis of that article, to rule on the compatibility of national rules with Community law. On the other hand, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of Community law necessary to enable that court to rule on the compatibility of those national rules with Community law (see, in particular, Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 19, and Wilson , paragraphs 34 and 35).
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51. Il suffit de relever que, par son deuxième moyen, le Royaume des Pays-Bas critique les points 95 à 100 de l’arrêt attaqué, qui sont des motifs surabondants. Or, des griefs dirigés contre des motifs surabondants d’un arrêt du Tribunal doivent être rejetés d’emblée, puisque ceux-ci ne sauraient entraîner son annulation (voir arrêts van den Berg/Conseil et Commission, C‑164/01 P, EU:C:2004:665, point 60, ainsi que Dansk Rørindustri e.a./Commission, C-189/02 P, C-202/02 P, C-205/02 P à C‑208/02 P et C‑213/02 P, EU:C:2005:408, point 148).
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66. That said, the Court’s interpretation of Regulation No 1408/71 in response to the first question submitted for a preliminary ruling must be understood without prejudice to the solution which flows from the potential applicability of provisions of primary law (see, by way of analogy, Acereda Herrera , cited above, paragraph 38). The finding that a national measure may be consistent with a provision of a secondary law measure, in this case Regulation No 1408/71, does not necessarily have the effect of removing that measure from the scope of the Treaty’s provisions (see, to that effect, Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 25, and Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 47). It follows that the applicability, as the case may be, of Articles 19 or 22 of Regulation No 1408/71 to a situation such as that at issue in the main proceedings does not of itself prevent the person concerned from claiming, pursuant to primary law, the payment of certain costs relating to care received in a care home situated in another Member State, under rules different to those provided for in those articles (see, by analogy, Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraphs 37 to 53, along with Watts , cited above, paragraph 48).
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42 It is also settled case-law that the special nature of certain services does not remove them from the ambit of the fundamental principle of freedom of movement (Case 279/80 Webb [1981] ECR 3305, paragraph 10, and Kohll paragraph 20), so that the fact that the national rules at issue in the main proceedings are social security rules cannot exclude application of Articles 59 and 60 of the Treaty (Kohll, paragraph 21).
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95. In those circumstances, the appellant ' s argument that it would be less discriminatory to choose a single language rather than five is not apposite.
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34. According to that case-law, the Commission is entitled, if necessary by adopting a decision, to compel an undertaking to provide all necessary information concerning such facts as may be known to it but may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (Case 374/87 Orkem v Commission [1989] ECR 3283, paragraphs 34 and 35; Joined Cases C‑204/00 P, C‑205/00 P, C-211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 61 and 65; and Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp v Commission [2005] ECR I‑6773, paragraph 49).
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49. According to the judgment in Case 374/87 Orkem v Commission [1989] ECR 3283, paragraphs 34 and 35, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it but may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.
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31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.
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23 Secondly, the argument of the Hellenic Government that its legislation is not an obstacle to the activities of nationals of other Member States is not relevant under the second paragraph of Article 52 of the Treaty. As the Court found in its judgment in Factortame and Others, cited above, at paragraph 25, freedom of establishment includes, in the case of nationals of a Member State, `the right to take up and pursue activities as self-employed persons ... under the conditions laid down for its own nationals by the law of the country where such establishment is effected ...'.
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17 Consequently, the answer to the first question must be that, as Community law stands at present, it is for the Member States to determine, in accordance with the general rules of international law, the conditions which must be fulfilled in order for a vessel to be registered in their registers and granted the right to fly their flag, but, in exercising that power, the Member States must comply with the rules of Community law.
The second question
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35. Therefore, that must be the case so far as the entitlement to paid annual leave is concerned.
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48. Il résulte de cette même jurisprudence que les exonérations visées à l’article 132 de la directive 2006/112 constituent des notions autonomes du droit de l’Union ayant pour objet d’éviter des divergences dans l’application du régime de la TVA d’un État membre à l’autre (voir, en ce sens, arrêts précités Horizon College, point 15 et jurisprudence citée, ainsi que Eulitz, point 25).
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15. According to the case-law of the Court, the exemptions provided for in Article 13 of the Sixth Directive 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 (see Case C‑349/96 CPP [1999] ECR I‑973, paragraph 15; Case C‑240/99 Skandia [2001] ECR I‑1951, paragraph 23; and Ygeia , paragraph 15).
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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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24. That interpretation is confirmed by the object of the Directive, which is to establish harmonised legal protection in the Community for the rental and lending right and certain rights related to copyright in the field of intellectual property (see Case C-200/96 Metronome Musik [1998] ECR I-1953, paragraph 22).
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22 The object of the Directive is to establish harmonised legal protection in the Community for the rental and lending right and certain rights related to copyright in the field of intellectual property. According to the first three recitals in its preamble, such harmonisation is intended to eliminate differences between national laws which are liable to create barriers to trade, distort competition and impede the achievement and proper functioning of the internal market. As is stated, more specifically, in the fourth, fifth and seventh recitals in the preamble to the Directive, the rental right, which, as a result of the increasing threat of piracy, is of increasing importance to the economic and cultural development of the Community must in particular guarantee that authors and performers can receive appropriate income and amortise the especially high and risky investments required particularly for the production of phonograms and films.
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49 In reviewing the exercise of such a power the Court must confine itself to examining whether it contains a manifest error or constitutes a misuse of power or whether the authority in question did not clearly exceed the bounds of its discretion (see Roquette Frères, cited above, paragraph 25).
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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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36. Thus, according to settled case-law, derogation under those articles must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Servizi Ausiliari Dottori Commercialisti , cited above, paragraph 46 and the case-law cited), which excludes from being regarded as connected with the exercise of official authority, within the meaning of that derogation, functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision (Case C‑42/92 Thijssen [1993] ECR I‑4047, paragraph 22).
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124. Il ressort de ces éléments, premièrement, que le Tribunal n’a pas commis d’erreur de droit en interprétant le point 23 des lignes directrices pour le calcul des amendes comme signifiant que la Commission a annoncé dans celles-ci que, pour les restrictions de concurrence les plus graves, telles que les accords horizontaux de fixation de prix et de répartition du marché, elle retiendra généralement une proportion allant de 15 % à 30 % de la valeur des ventes. Le Tribunal ayant à bon droit considéré que l’infraction commise par Gosselin relevait de cette catégorie d’infractions les plus graves, Gosselin ne saurait utilement prétendre que son comportement individuel n’aurait pas été pris en compte.
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33. With regard to the task conferred on the Court by Article 267 TFEU, it is true that the Court has held that it cannot give a ruling on a question referred by a national court where it is quite obvious that the interpretation or the assessment of the validity of a provision of European Union law sought by the national court bear no relation to the actual nature of the case or to the subject-matter of the main action (see, inter alia, Case C‑143/94 Furlanis [1995] ECR I‑3633, paragraph 12).
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12 In that regard the Court has consistently held that it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (see, most recently, the judgment in Case C-62/93 Supergas [1995] ECR I-0000, paragraph 10). But that is not the case here.
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69 However, such a tax is contrary to the principle of proportionality in so far as the aim which it pursues might be achieved by introducing a tax proportionate to the duration of the registration of the vehicle in the State where it is used, which would ensure there was no discrimination with respect to amortisation of the tax against vehicle leasing undertakings established in other Member States.
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104. As for the fact that advertising campaigns conducted by the holder of the monopoly with regard to lottery products thus lay emphasis on the fact that revenue from the marketing of the latter is used to finance activities which are non-profit-making or in the public interest, it should also be recalled, first, that, according to settled case-law, although it is a relevant factor that games played for money may contribute significantly to the financing of such activities, such a ground cannot in itself be regarded as an objective justification for restrictions on the freedom to provide services. The latter are permissible only on condition, in particular, that the financing of such social activities constitutes an ancillary beneficial consequence of, and not the substantive justification for, the restrictive policy established, which it is for the national court to ascertain (see, to that effect, Zenatti , paragraphs 36 and 37).
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36 However, as the Advocate General observes in paragraph 32 of his Opinion, such a limitation is acceptable only if, from the outset, it reflects a concern to bring about a genuine diminution in gambling opportunities and if the financing of social activities through a levy on the proceeds of authorised games constitutes only an incidental beneficial consequence and not the real justification for the restrictive policy adopted. As the Court observed in paragraph 60 of Schindler, even if it is not irrelevant that lotteries and other types of gambling may contribute significantly to the financing of benevolent or public-interest activities, that motive cannot in itself be regarded as an objective justification for restrictions on the freedom to provide services.
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6 THEREFORE THE ANSWER TO THE FIRST QUESTION PUT BY THE BUNDESFINANZHOF IS THAT ARTICLE 23 ( 1 ) OF REGULATION NO 19/62 OF THE COUNCIL OF THE EEC IS TO BE INTERPRETED AS MEANING THAT MEMBER STATES ARE NOT PERMITTED TO ADOPT PROVISIONS OF NATIONAL LAW AFFECTING THE SCOPE OF THE REGULATION ITSELF, AND IN PARTICULAR THE DESCRIPTIONS OF GOODS APPEARING THEREIN .
THE SECOND QUESTION
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15. It is only during the phase in which rights are acquired on an incremental basis in accordance with the length of the paid legal employment as set out in the three indents of Article 6(1) of Decision No 1/80 and, therefore, only for the purpose of calculating the various periods of employment necessary for that purpose, that Article 6(2) lays down the effects on those periods of the various causes of interruption of employment (see, to that effect, Case C-434/93 Bozkurt [1995] ECR I‑1475, paragraph 38; Tetik , paragraphs 36 to 39; and Nazli , paragraph 40).
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40 In particular, while legal employment for an uninterrupted period of one, three or four years respectively is in principle required in order for the rights provided for in the three indents of Article 6(1) to be established, the third indent of that provision implies the right for the worker concerned, who is already duly integrated into the labour force of the host Member State, to take a temporary break from work. Such a worker thus continues to be duly registered as belonging to the labour force of that State provided that he actually finds another job within a reasonable period, and therefore enjoys a right to reside there during that period.
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47. It must be added that the question of whether the consumer is assisted by a lawyer or not cannot alter that conclusion, as the interpretation of EU law and also the scope of the principles of effectiveness and equivalence are independent of the specific circumstances of each case (see, to that effect, judgment in Rampion and Godard , EU:C:2007:575, paragraph 65).
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19. Article 4(1) of that directive prohibits any ‘discrimination whatsoever on ground of sex ... in particular as concerns ... the scope of the schemes and the conditions of access ..., the obligation to contribute and the calculation of contributions [and] the calculation of benefits’. That provision can be relied upon by an individual before national courts in order to have any national provision not in conformity with that article disapplied (Case C‑102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraph 19, and Case C‑337/91 van Gemert-Derks [1993] ECR I‑5435, paragraph 31).
The requirement to pay adjustment contributions
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31 The Court has held on many occasions (see, inter alia, Case C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraph 19) that Article 4(1), considered above and in the light of the purpose and content of that directive, is sufficiently precise to be relied upon by an individual before a national court in order to have any national provision not in conformity with that article disapplied.
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47 NEVERTHELESS IT IS EVIDENT FROM THE FOREGOING THAT THE FAILURE TO COMPLY WITH THE LEGAL FORMALITIES CONCERNING THE ENTRY , MOVEMENT AND RESIDENCE OF ALIENS DOES NOT IN ITSELF CONSTITUTE A THREAT TO PUBLIC POLICY AND PUBLIC SECURITY WITHIN THE MEANING OF THE TREATY .
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27. That finding cannot be undermined by the Commission’s argument relating to the possibility for the institutions to reconcile the interests of an applicant for access to documents in their possession with the interest of good administration. It is true, as stated in paragraph 30 of the judgment in Council v Hautala (C‑353/99 P, EU:C:2001:661), that it flows from the principle of proportionality that the institutions may, in particular cases in which the volume of documents for which access is applied or in which the number of passages to be censured would involve an inappropriate administrative burden, balance the interest of the applicant for access against the workload resulting from the processing of the application for access in order to safeguard the interests of good administration.
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30 The Court of First Instance also applied the principle of proportionality correctly when, in paragraph 86 of the contested judgment, in response to the Council's argument based on the excessive administrative burden which would be entailed by an obligation to ensure partial access to the documents it holds, it reserved the possibility of safeguarding the interests of good administration in particular cases.
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10 It appears from the above particulars that, according to its aim and content, the directive at issue has the object of ensuring the management of waste, whether it is of industrial or domestic origin, in accordance with the requirements of environmental protection.
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67. It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict the possibility for any person concerned of relying on a provision it has interpreted with a view to calling in question legal relationships established in good faith (see Blaizot , paragraph 28; Case C‑163/90 Legros and Others [1992] ECR I‑4625, paragraph 30; and Case C‑262/96 Sürül [1999] ECR I‑2685, paragraph 108).
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30 It should be observed that it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict for any person concerned the opportunity of relying upon the provisions thus interpreted with a view to calling in question legal relationships established in good faith. As the Court has consistently held, such a restriction may be allowed only in the actual judgment ruling upon the interpretation sought. In determining whether or not to limit the temporal effect of a judgment it is necessary to bear in mind that although the practical consequences of any judicial decision must be weighed carefully, the Court cannot go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from a judicial decision (judgment in Case 24/86 Blaizot [1988] ECR 379, paragraphs 28 and 30).
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102 Referring to GB-Inno-BM, cited above, Drijvende Bokken considers, however, that the fact that the Fund fulfils a dual role, as manager of the pension scheme and as the authority vested with the power to grant exemptions, might give rise to unfair exercise of the power of exemption.
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41. That interpretation is not undermined by the Commission’s argument that contracts negotiated on the oligopolistic market for uranium enrichment have potentially significant effects on the security of the long-term supply of the Community and on the equal treatment of users. Even if that view were to be accepted, such reasoning implies that the interpretation of Article 75 EA should depend on market conditions. Such an interpretation of the provisions concerning the supply rules cannot be accepted (see, to that effect, Commission v France , paragraph 43).
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43 IN ANY CASE, THE FACT THAT MARKET CONDITIONS MAY DURING A GIVEN PERIOD HAVE RENDERED LESS NECESSARY THE USE OF THE SUPPLY MECHANISMS PRESCRIBED BY THE TREATY DOES NOT SUFFICE TO DEPRIVE THE PROVISIONS RELATING TO THESE MECHANISMS OF THEIR MANDATORY CHARACTER .
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44. As is clear from the order for reference, the Bundesanstalt maintains, with reference to a letter from the Federal Interior Ministry, that a complete opening‑up of access to European cure establishments would involve a real danger to the financial equilibrium and the competence of the medical and hospital resources of the system of German cure establishments. The Spanish Government likewise submits, in its written observations, that the disputed condition is justified in the light of the need to maintain financial equilibrium in respect of health cures and to ensure the maintenance of treatment capacity and of medical competence in that sector in Germany.
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37 It is clear not only from the wording of Article 37 but also from the position which it occupies in the general scheme of the Treaty that the article is designed to ensure compliance with the fundamental principle that goods should be able to move freely throughout the common market, in particular by requiring quantitative restrictions and measures having equivalent effect in trade between Member States to be abolished, and thereby to ensure maintenance of normal conditions of competition between the economies of Member States in the event that a given product is subject, in one or other of those States, to a national monopoly of a commercial character (judgments in Case 59/75 Pubblico Ministero v Manghera and Others [1976] ECR 91, paragraph 9; Hansen, cited above, paragraph 8; Case 78/82 Commission v Italy [1983] ECR 1955, paragraph 11; Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 42; and Case C-387/93 Banchero [1995] ECR I-4663, paragraph 27, hereinafter `Banchero II').
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42 Furthermore, as the Court has held(in particular, in the judgment in Case 78/82 Commission v Italy [1983] ECR 1955, paragraph 11 ), it is clear not only from the wording of Article 37 but also from its position in the general scheme of the Treaty that the article is designed to ensure compliance with the fundamental rule of the free movement of goods throughout the common market, in particular by the abolition of quantitative restrictions and measures having equivalent effect in trade between Member States, and thereby to maintain normal conditions of competition between the Member States should a given product, in one or other of those States, be subject to a national monopoly of a commercial character .
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41. Quant à l’identité du redevable de la NoVA, il est vrai que, comme le fait valoir la République d’Autriche, l’article 4 du NoVAG énonce que le distributeur est le responsable du paiement de la taxe à l’égard des autorités fiscales compétentes. Cependant, le distributeur répercute le montant de la taxe sur l’acheteur du véhicule. Ainsi, la NoVA, à l’instar de la taxe en cause dans l’affaire ayant donné lieu à l’arrêt De Danske Bilimportører, précité, a comme redevable économique ledit acheteur. (voir, en ce sens, arrêt De Danske Bilimportører, précité, point 27).
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55. It should be remembered that, according to settled case-law, the right to deduct provided for in Article 167 et seq. of the VAT Directive is an integral part of the VAT scheme and, in principle, may not be limited. The right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, inter alia, judgments in Gabalfrisa and Others , C‑110/98 to C‑147/98, EU:C:2000:145, paragraph 43; Kittel and Recolta Recycling , C‑439/04 and C‑440/04, EU:C:2006:446, paragraph 47; Mahagében and Dávid , C‑80/11 and C‑142/11, EU:C:2012:373, paragraph 38; and Gran Via Moineşti , C‑257/11, EU:C:2012:759, paragraph 21).
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21. The Court has repeatedly held that the right to deduct provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited. The right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, inter alia, Joined Cases C‑110/98 to C‑147/98 Gabalfrisa and Others [2000] ECR I‑1577, paragraph 43; Case C‑63/04 Centralan Property [2005] ECR I‑11087, paragraph 50; Joined Cases C‑439/04 and C‑440/04 Kittel and Recolta Recycling [2006] ECR I‑6161, paragraph 47; and Mahagében and Dávid , paragraph 38).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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17. Secondly, it is important to bear in mind that it is apparent from the case-law that it is the acquisition of an item by a taxable person acting as such that gives rise to the application of the VAT system and therefore of the deduction mechanism. The use to which the item is put, or intended to be put, merely determines the extent of the initial deduction to which the taxable person is entitled under Article 17 and the extent of any adjustments in the course of the following periods (Case C-97/90 Lennartz [1991] ECR I-3795, paragraph 15). By contrast, where a taxable person acquires goods solely for his private requirements, he is acting in a private capacity and not as a taxable person within the meaning of the Sixth Directive (Case C-20/91 de Jong [1992] ECR I-2847, paragraph 17).
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17 Where a taxable person acquires goods solely for his private requirements, he is acting in a private capacity and not as a taxable person within the meaning of the Sixth Directive. Consequently, the various provisions of the Sixth Directive concerning the acquisition of goods by a business, in particular Article 17(2), which confers on taxable persons the right to deduct VAT, and the administrative and accounting rules laid down in Articles 18 and 22 of the Sixth Directive, do not apply.
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36. In that regard, the Court has already held that the prevention of tax evasion is an overriding reason relating to the public interest, capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty (see, inter alia, Case C-451/05 ELISA [2007] ECR I-8251, paragraph 81), as is the need to guarantee the effectiveness of fiscal supervision (see, inter alia, Case C-101/05 A [2007] ECR I-11531, paragraph 55).
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25
With particular regard to the question whether selective distribution may be considered necessary in respect of luxury goods, it must be recalled that the Court has already held that the quality of such goods is not just the result of their material characteristics, but also of the allure and prestigious image which bestow on them an aura of luxury, that that aura is essential in that it enables consumers to distinguish them from similar goods and, therefore, that an impairment to that aura of luxury is likely to affect the actual quality of those goods (see, to that effect, judgment of 23 April 2009, Copad, C‑59/08, EU:C:2009:260, paragraphs 24 to 26 and the case-law cited).
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26. Therefore, an impairment to that aura of luxury is likely to affect the actual quality of those goods.
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39 It should first be recalled that the scope of Article 30 does not extend to the obstacles to trade covered by other specific provisions of the Treaty, and that obstacles of a fiscal nature or having an effect equivalent to customs duties, which are covered by Articles 9 and 12 of the EC Treaty (now, after amendment, Articles 23 EC and 25 EC) and Article 95 of the Treaty, do not fall within the prohibition laid down in Article 30 (see 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 20).
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93. Accordingly, natural or legal persons who cannot, by reason of the conditions of admissibility stated in the fourth paragraph of Article 263 TFEU, challenge directly European Union acts of general application do have protection against the application to them of those acts. Where responsibility for the implementation of those acts lies with the European Union institutions, those persons are entitled to bring a direct action before the Courts of the European Union against the implementing measures under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead, pursuant to Article 277 TFEU, in support of that action, the illegality of the general act at issue. Where that implementation is a matter for the Member States, such persons may plead the invalidity of the European Union act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (see, to that effect, Les Verts v Parliament , paragraph 23).
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23 IT MUST FIRST BE EMPHASIZED IN THIS REGARD THAT THE EUROPEAN ECONOMIC COMMUNITY IS A COMMUNITY BASED ON THE RULE OF LAW , INASMUCH AS NEITHER ITS MEMBER STATES NOR ITS INSTITUTIONS CAN AVOID A REVIEW OF THE QUESTION WHETHER THE MEASURES ADOPTED BY THEM ARE IN CONFORMITY WITH THE BASIC CONSTITUTIONAL CHARTER , THE TREATY . IN PARTICULAR , IN ARTICLES 173 AND 184 , ON THE ONE HAND , AND IN ARTICLE 177 , ON THE OTHER , THE TREATY ESTABLISHED A COMPLETE SYSTEM OF LEGAL REMEDIES AND PROCEDURES DESIGNED TO PERMIT THE COURT OF JUSTICE TO REVIEW THE LEGALITY OF MEASURES ADOPTED BY THE INSTITUTIONS . NATURAL AND LEGAL PERSONS ARE THUS PROTECTED AGAINST THE APPLICATION TO THEM OF GENERAL MEASURES WHICH THEY CANNOT CONTEST DIRECTLY BEFORE THE COURT BY REASON OF THE SPECIAL CONDITIONS OF ADMISSIBILITY LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY . WHERE THE COMMUNITY INSTITUTIONS ARE RESPONSIBLE FOR THE ADMINISTRATIVE IMPLEMENTATION OF SUCH MEASURES , NATURAL OR LEGAL PERSONS MAY BRING A DIRECT ACTION BEFORE THE COURT AGAINST IMPLEMENTING MEASURES WHICH ARE ADDRESSED TO THEM OR WHICH ARE OF DIRECT AND INDIVIDUAL CONCERN TO THEM AND , IN SUPPORT OF SUCH AN ACTION , PLEAD THE ILLEGALITY OF THE GENERAL MEASURE ON WHICH THEY ARE BASED . WHERE IMPLEMENTATION IS A MATTER FOR THE NATIONAL AUTHORITIES , SUCH PERSONS MAY PLEAD THE INVALIDITY OF GENERAL MEASURES BEFORE THE NATIONAL COURTS AND CAUSE THE LATTER TO REQUEST THE COURT OF JUSTICE FOR A PRELIMINARY RULING .
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Ainsi, pour qu’une mesure nationale puisse être qualifiée d’aide d’État, premièrement, il doit s’agir d’une intervention de
l’État ou au moyen de ressources d’État, deuxièmement, cette intervention doit être susceptible d’affecter les échanges entre
les États membres, troisièmement, elle doit accorder un avantage à son bénéficiaire et, quatrièmement, elle doit fausser ou
menacer de fausser la concurrence (voir en ce sens, notamment, arrêts Enirisorse, C‑237/04, EU:C:2006:197, points 38 et 39;
Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, point 56, ainsi que Commission/Deutsche Post, C‑399/08 P,
EU:C:2010:481, point 39).
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64. Finally, as evidenced by paragraph 58 of this judgment, it is implicit in the Directive’s purpose that the obligations which it lays down are to be fulfilled in such a way as to enable the workers concerned, or their representatives, to have access to the information which is necessary for them to be able to determine whether or not they are entitled to request the opening of negotiations and, where relevant, to make that request in due form ( Bofrost* , paragraph 38).
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38 As pointed out in paragraph 32 above, it is implicit in the Directive's purpose that the obligations which it lays down are to be fulfilled in such a way as to enable the workers concerned, or their representatives, to have access to the information which is necessary if they are to be able to determine whether or not they are entitled to request the opening of negotiations and, where relevant, to make that request in due form.
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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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50. Concerning the default interest, it must be observed that, in the absence of harmonisation of European Union legislation in the field of the penalties applicable in cases where conditions laid down by arrangements under such legislation are not complied with, Member States retain the power to choose the penalties which seem to them to be appropriate. They must, however, exercise that power in accordance with European Union law and its general principles, and, consequently, in accordance with the principle of proportionality (see, to that effect, inter alia, Case C-210/91 Commission v Greece [1992] ECR I-6735, paragraph 19 and the case-law cited; Case C-213/99 de Andrade [2000] ECR I-11083, paragraph 20; and Rodopi-M 91 , paragraph 31).
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20 As regards customs offences, the Court has pointed out that in the absence of harmonisation of the Community legislation in that field, the Member States are empowered to choose the penalties which seem appropriate to them. They must, however, exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality (see Siesse, paragraph 21).
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42. It follows that, apart from the case of substances or combinations of substances intended for the purpose of making a medical diagnosis, a product cannot be regarded as being a medicinal product by function where, having regard to its composition – including its content in active substances – and if used as intended, it is incapable of appreciably restoring, correcting or modifying physiological functions in human beings.
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38. Similarly, the exercise of any discretion to decide whether or not it would be expedient to demand repayment of Community funds unduly or irregularly granted would be inconsistent with the duty imposed on national administrations by the first subparagraph of Article 23(1) of Regulation No 4253/88 to recover any amounts unduly or irregularly paid (see, by analogy, with regard to Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (I), p. 218), Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraph 22).
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22 IN THE FIRST PLACE THE APPLICATION OF NATIONAL LAW MUST NOT AFFECT THE SCOPE AND EFFECTIVENESS OF COMMUNITY LAW . THAT WOULD BE THE CASE IN PARTICULAR IF THE APPLICATION OF NATIONAL LAW MADE IT IMPOSSIBLE IN PRACTICE TO RECOVER SUMS IRREGULARLY GRANTED . FURTHERMORE , THE EXERCISE OF ANY DISCRETION TO DECIDE WHETHER OR NOT IT WOULD BE EXPEDIENT TO DEMAND REPAYMENT OF COMMUNITY FUNDS UNDULY OR IRREGULARLY GRANTED WOULD BE INCONSISTENT WITH THE DUTY TO RECOVER SUCH SUMS WHICH ARTICLE 8 ( 1 ) OF REGULATION NO 729/70 IMPOSES ON THE NATIONAL ADMINISTRATION .
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30. À titre liminaire, il convient de rappeler que, selon une jurisprudence constante, le droit d’obtenir le remboursement d’impôts perçus dans un État membre en violation du droit de l’Union est la conséquence et le complément des droits conférés aux contribuables par les dispositions du droit de l’Union telles qu’elles ont été interprétées par la Cour. Un État membre est ainsi tenu, en principe, de rembourser les impôts perçus en violation du droit de l’Union (voir arrêt du 19 juillet 2012, Littlewoods Retail e.a., C‑591/10, point 24 et jurisprudence citée).
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