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33. The above findings are further reinforced by the objective of Article 54 of the CISA, which is to ensure that no one is prosecuted for the same acts in several Contracting States on account of his having exercised his right to freedom of movement ( Gözütok and Brügge , paragraph 38, and Case C-469/03 Miraglia [2005] ECR I-2009, paragraph 32).
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38. Article 54 of the CISA, the objective of which is to ensure that no one is prosecuted on the same facts in several Member States on account of his having exercised his right to freedom of movement, cannot play a useful role in bringing about the full attainment of that objective unless it also applies to decisions definitively discontinuing prosecutions in a Member State, even where such decisions are adopted without the involvement of a court and do not take the form of a judicial decision.
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25
In principle, such a system, as already stated in paragraph 22 of the present judgment, enables the persons responsible for payment to pass on the amount of that levy in the sale price of those media, so that the burden of the levy is ultimately borne, in accordance with the requirement of a ‘fair balance’, by the private user who pays that price, if such a user is the final recipient (see judgment of 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 27).
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182. In so far as the question concerns successive fixed-term employment contracts, it must be pointed out that that question is the same as a question on which the Court has already given a ruling in Adeneler and Others (paragraphs 91 to 105) and that other relevant information enabling an answer to be given to that question appears in the judgments in Marrosu and Sardino (paragraphs 44 to 57) as well as Vassallo (paragraphs 33 to 42) and the order in Vassilakis and Others (paragraphs 120 to 137).
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52. While the detailed rules for implementing such provisions fall within the internal legal order of the Member States by virtue of the principle of procedural autonomy of the Member States, they must, however, not be less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Case C‑312/93 Peterbroeck [1995] ECR I‑4599, paragraph 12, and Adeneler and Others , paragraph 95).
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5 FURTHER THE APPLICANT MAINTAINS THAT THERE ARE SEVERAL IRREGULARITIES IN THE APPOINTMENT OF MR ROGER WURTH .
ADMISSIBILITY
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31. In line with this broad interpretation of the concept of a decision amenable to review, the Court has held that the contracting authority’s decision prior to the conclusion of the contract as to the tenderer to whom the contract will be awarded must in all cases be open to review, regardless of the possibility of obtaining an award of damages once the contract has been concluded ( Alcatel Austria and Others , paragraph 43).
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43 It follows from those considerations that the combined provisions of Article 2(1)(a) and (b) and the second subparagraph of Article 2(6) of Directive 89/665 are to be interpreted as meaning that the Member States are required to ensure that the contracting authority's decision prior to the conclusion of the contract as to the bidder in a tender procedure with which it will conclude the contract is in all cases open to review in a procedure whereby an applicant may have that decision set aside if the relevant conditions are met, notwithstanding the possibility, once the contract has been concluded, of obtaining an award of damages.
Second and third questions
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51
However, the territorial scope of the prohibition may in certain circumstances be restricted (judgments of 12 April 2011, DHL Express France, C‑235/09, EU:C:2011:238, paragraph 46, and of 22 September 2016, combit Software, C‑223/15, EU:C:2016:719, paragraph 31).
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120. The importance of the Community rules infringed in this case is reflected, in particular, in the fact that repayment of unlawfully paid State aid eliminates the distortion of competition caused by the competitive advantage afforded by the aid and, by repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market (see, to that effect, Case C‑350/93 Commission v Italy [1995] ECR I‑699, paragraph 22, and Case C‑277/00 Germany v Commission [2004] ECR I‑3925, paragraph 75).
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22 That objective is attained once the aid in question, increased where appropriate by default interest, has been repaid by the recipient, in this case SNAM SpA, to ENI, the public body responsible for managing State holdings. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored.
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69. The notion of ‘funds, other financial assets and economic resources’ as used in Regulation No 2580/2001 also takes on, by virtue of the related definition given in Article 1(1) of that regulation, a wide meaning which covers assets of every kind, however acquired. It is not important, in that regard, whether own assets or assets which have been collected or obtained from third persons are concerned.
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42. Such a right in fact strengthens the working of the EU competition rules and discourages agreements or practices, frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before national courts can make a significant contribution to the maintenance of effective competition in the EU ( Courage and Crehan , paragraph 27).
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27 Indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community.
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12 It must be noted, first, that a rule which makes the grant of interest rate subsidies subject to the requirement that the loans have been obtained from an establishment approved in the Member State in question also constitutes discrimination against credit institutions established in other Member States, which is prohibited by the first paragraph of Article 59 of the Treaty.
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23. 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 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; Joined Cases C‑94/04 and C‑202/94 Cipolla and Others [2006] ECR I-11421, paragraph 25; Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I-4233, paragraph 22; Case C‑379/05 Amurta [2007] ECR I‑9569, paragraph 64; and Zablocka-Weyhermüller , paragraph 21).
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25. As regards Mr Cipolla’s pleas of inadmissibility, it should be recalled that 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 Case C-466/04 Acereda Herrera [2006] ECR I-0000, paragraph 48).
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38. Or, il convient de rappeler, à cet égard, que les déchets ont une nature particulière, si bien que leur accumulation, avant même qu’ils ne deviennent dangereux pour la santé, constitue, compte tenu notamment de la capacité limitée de chaque région ou localité à les recevoir, un danger pour l’environnement (arrêt Commission/Italie, C‑297/08, EU:C:2010:115, point 105).
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20. While the Court has stressed the importance of the period of the letting in those judgments, it has done so in order to distinguish a transaction comprising the letting of immovable property, which is usually a relatively passive activity linked simply to the passage of time and not generating any significant added value (see, to that effect, Goed Wonen , paragraph 52), from other activities which are either industrial and commercial in nature, such as the exemptions referred to in Article 13B(b)(1) to (4) of the Sixth Directive, or have as their subject‑matter something which is best understood as the provision of a service rather than simply the making available of property, such as the right to use a golf course ( Stockholm Lindöpark , paragraphs 24 to 27), the right to use a bridge in consideration of payment of a toll ( Commission v Ireland ) or the right to install cigarette machines in commercial premises ( Sinclair Collis , paragraphs 27 to 30).
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30 In view of the scope of the term economic activities it must be held that, in providing access to roads in return for payment, operators in Ireland are carrying out an economic activity within the meaning of the Sixth Directive.
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51. In that regard, it should be recalled that the fact that the legislation of a Member State ceases to be applicable constitutes a condition for the application of that provision, and that that provision does not itself define the conditions in which the legislation of a Member State ceases to be applicable (see Commission v Belgium , C‑347/98, EU:C:2001:236, paragraph 31). As the Court has stated, inter alia, in paragraph 33 of the judgment in van Pommeren-Bourgondiën (C‑227/03, EU:C:2005:431), it is for the legislation of each Member State to lay down those conditions.
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42. In that context, it is settled case-law that the concept of aid embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (see, in particular, Case C‑143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I-8365, paragraph 38, and Heiser , paragraph 36).
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36. As regards the third condition cited in paragraph 27 of this judgment, relating to the existence of an advantage, it is settled case-law that the concept of aid is more general than that of a subsidy. It embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (see Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , paragaraph 38, and the case-law cited).
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138. It is also apparent from that provision that the Court of First Instance cannot re-evaluate the factual circumstances in the light of evidence adduced for the first time before it. The legality of a decision of a Board of Appeal of OHIM must be assessed in the light of the information available to it when it adopted that decision.
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31
As for the substance, it follows from the second to fourth recitals of Directive 85/611 that, in order to ensure that UCITS units are marketed freely within the European Union, that directive sought to coordinate national laws governing UCITS, in order, first, to approximate, within the European Union, the conditions of competition between those undertakings, and, secondly, to ensure more effective and more uniform protection for unit-holders. To that end, that directive established common basic rules governing the authorisation, supervision, structure and activities of UCITS and the information which they must publish (judgment of 11 September 2014 in Gruslin, C‑88/13, EU:C:2014:2205, paragraph 33).
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33. It follows from the second to fourth recitals in the preamble to the UCITS Directive that, in order to ensure that UCITS units are marketed freely within the European Union, the UCITS Directive seeks to coordinate national laws governing UCITS, in order, first, to approximate, within the European Union, the conditions of competition between those undertakings, and, secondly, to ensure more effective and more uniform protection for unit-holders. To that end, the UCITS Directive establishes common basic rules governing the authorisation, supervision, structure, and activities of UCITS and the information which they must publish.
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36. For VAT to be deductible, the input transactions must have a direct and immediate link with the output transactions giving rise to a right of deduction. Thus, the right to deduct VAT charged on the acquisition of input goods or services presupposes that the expenditure incurred in acquiring them was a component of the cost of the output transactions that gave rise to the right to deduct (see Cibo Participations , paragraph 31; Case C-465/03 Kretztechnik [2005] ECR I-4357, paragraph 35; Case C-435/05 Investrand [2007] ECR I-1315, paragraph 23; Securenta , paragraph 27; and SKF , paragraph 57).
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34. According to equally settled case‑law, 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 relevant public’s perception of the mark ( Procter & Gamble v OHIM , paragraph 33; Case C‑25/05 P Storck v OHIM [2006] ECR I‑5719, paragraph 25; Henkel v OHIM , paragraph 35; and Eurohypo v OHIM , paragraph 67).
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25. As regards the first part of the first ground of appeal, it is settled case-law that the distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation No 40/94, must be assessed, firstly, by reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the perception of them by 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, in particular, Joined Cases C-456/01 P and C-457/01 P Henkel v OHIM [2004] ECR I‑5089, paragraph 35, and Case C-173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I-0000, paragraph 25).
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37 It follows from Articles 2 and 10 of the directive that, when an activity is usually pursued by architects holding a qualification awarded by the host Member State, a migrant architect holding a diploma, certificate or other evidence of formal qualifications coming within the scope of the directive must also be able to pursue such an activity, even if his diploma, certificate or other evidence of formal qualifications is not necessarily substantively equivalent in terms of the training received.
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107. On the contrary, it is for the person applying for access to establish the necessity of transferring that data (see judgment in Commission v Bavarian Lager , EU:C:2010:378, paragraph 77).
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77. By requiring that, in respect of the five persons who had not given their express consent, Bavarian Lager establish the necessity for those personal data to be transferred, the Commission complied with the provisions of Article 8(b) of Regulation No 45/2001.
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8 FOR THESE REASONS THE PLEA IS INADMISSIBLE .
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19. It should be pointed out that the Court has held that where there is common organisation of the market in a given sector, the Member States can in principle no longer take action through national provisions adopted unilaterally (Case 154/77 Dechmann [1978] ECR 1573, paragraph 16). Their legislative competence can only be residual and is limited to situations which are not governed by the Community rules and to cases where those rules expressly give them power to act (Case 48/85 Commission v Germany [1986] ECR 2549, paragraph 12).
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12 AS THE COURT HAS POINTED OUT ON A NUMBER OF OCCASIONS , IT IS ONE OF THE FUNDAMENTAL CHARACTERISTICS OF A COMMON ORGANIZATION OF THE MARKET THAT IN THE SECTORS CONCERNED THE MEMBER STATES CAN NO LONGER TAKE ACTION THROUGH NATIONAL PROVISIONS ADOPTED UNILATERALLY ( SEE IN PARTICULAR THE JUDGMENT OF 29 JUNE 1978 IN CASE 154/77 , PROCUREUR DU ROI V DECHMANN , ( 1978 ) ECR 1573 ). THEIR LEGISLATIVE COMPETENCE CAN ONLY BE RESIDUAL ; IT IS LIMITED TO SITUATIONS WHICH ARE NOT GOVERNED BY THE COMMUNITY RULES AND TO CASES WHERE THOSE RULES EXPRESSLY GIVE THEM POWER TO ACT .
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31. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines to the parent company without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others v Commission , paragraph 59, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others , paragraph 44).
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26 Furthermore, the second factor on which the Court based its interpretation in the Rapides Savoyards judgment, namely the existence of a procedure for settling disputes concerning origin, is missing in this case.
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28 THERE IS NO DANGER THAT THE APPLICATION OF THOSE PROVISIONS MAY ENCOURAGE ABUSES , IN VIEW OF THE FACT THAT ARTICLES 16 AND 17 OF PROTOCOL NO 3 , IN PARTICULAR IN THEIR NEW VERSION , HAVE SET OUT IN DETAIL THE METHODS OF COOPERATION BETWEEN THE CUSTOMS AUTHORITIES CONCERNED , WHERE THE ORIGIN IS CONTESTED OR WHERE THE EXPORTERS OR IMPORTERS HAVE ACTED FRAUDULENTLY .
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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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29
It should be noted in that regard that it follows from Article 288 TFEU that the Member States are required, when transposing a directive, to ensure that it is fully effective, whilst retaining a broad discretion as to the choice of ways and means of ensuring that the directive is implemented. That freedom of choice does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it seeks to attain (see, to that effect, judgment of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraphs 24 and 25 and the case-law cited).
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25. It must also be observed that the freedom to choose the ways and means of ensuring that a directive is implemented does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it pursues (see, in particular, Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 40).
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35 HOWEVER, THE COUNCIL' S RULES OF PROCEDURE DO NOT AUTHORIZE THE SECRETARY-GENERAL OR THE STAFF OF THE GENERAL SECRETARIAT TO MAKE ALTERATIONS OR CORRECTIONS TO TEXTS ADOPTED BY THE COUNCIL . ALTHOUGH IT IS CLEARLY PART OF THE DUTIES OF THE COUNCIL' S GENERAL SECRETARIAT TO CORRECT SPELLING AND GRAMMAR, THAT DISCRETION CANNOT EXTEND TO THE CONTENT OF THE MEASURE IN QUESTION .
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54. According to the case-law of the Court, obliging a person who has exercised his right to move and reside freely in the territory of another Member State to use a surname, in the Member State of which he a national, which is different from that already conferred and registered in the Member State of birth and residence is liable to hamper the exercise of the right, established in Article 21 TFEU, to move and reside freely within the territory of the Member States ( Grunkin and Paul , paragraphs 21 and 22).
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22. Having to use a surname, in the Member State of which the person concerned is a national, that is different from that conferred and registered in the Member State of birth and residence is liable to hamper the exercise of the right, established in Article 18 EC, to move and reside freely within the territory of the Member States.
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61. It is, however, also necessary that the restriction on the free movement of capital be appropriate for attaining those objectives and not go beyond what is necessary to attaining them (see to that effect, for example, Case C‑540/07 Commission v Italy , paragraph 57).
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31
In the context of bilateral tax conventions, it follows from the case-law of the Court that the scope of such a convention is limited to the natural or legal persons defined by it. Likewise, the benefits granted by it are an integral part of all the rules under the convention and contribute to the overall balance of mutual relations between the two contracting States (see, to that effect, judgments of 5 July 2005 in D., C‑376/03, EU:C:2005:424, paragraphs 54 and 61 to 62, and of 20 May 2008 in Orange European Smallcap Fund, C‑194/06, EU:C:2008:289, paragraphs 50 to 51). It must be noted, as the Advocate General did at point 43 of her Opinion, that that situation is the same with regard to double taxation conventions concluded with Member States or with third States.
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51. In those judgments, the Court held that, where a benefit granted by a bilateral tax convention cannot be classified as a benefit that is separable from that convention, but contributes to its overall balance (the fact that the reciprocal rights and obligations arising under that convention apply only to persons resident in one of the two contracting Member States being an inherent consequence of bilateral conventions), Community law does not preclude the benefit in question from not being conferred on the resident of a third Member State, in so far as that resident is not in a situation comparable to that of residents covered by the convention in question (see, to that effect, D. , paragraphs 59 to 63, and Test Claimants in Class IV of the ACT Group Litigation , paragraphs 88 to 93).
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42
In adopting those provisions, the Commission therefore amended an essential element of Directive 2003/87.
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25. Furthermore, as the Commission has stated, the application to certain cross-border capital movements of a higher rate of tax than that applied to movements within Belgium is liable to make those cross-border capital movements less attractive, by dissuading Belgian residents from naming as beneficiaries persons established in Member States in which those Belgian residents have not actually resided or worked (see, to that effect, Case C‑318/07 Persche [2009] ECR I‑359, paragraph 38).
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38. As the Advocate General pointed out in paragraphs 47 and 48 of his Opinion, since the possibility of obtaining a deduction for tax purposes can have a significant influence on the donor’s attitude, the inability in Germany to deduct gifts to bodies recognised as charitable if they are established in other Member States is likely to affect the willingness of German taxpayers to make gifts for their benefit.
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61. The Court must therefore ascertain whether TU has demonstrated to the requisite legal standard that at the time of notification of the statement of objections, that is to say, on 3 July 1996, it experienced difficulties in defending itself which were the consequence of the excessive duration of the administrative procedure.
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44. Turning to the substance, it should be recalled that the Framework Agreement is not intended to harmonise all national rules relating to fixed-term employment contracts but simply aims, by determining general principles and minimum requirements, to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and to prevent abuse arising from the use of successive fixed-term work agreements or contracts (see, in this regard, Del Cerro Alonso , EU:C:2007:509, paragraphs 26 and 36; Impact , C‑268/06, EU:C:2008:223, paragraph 111; Huet , C‑251/11, EU:C:2012:133, paragraph 41; and the order in Vino , C‑20/10, EU:C:2010:677, paragraph 54).
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26. It must be added that, as is clear from clause 1 of the framework agreement, the objective of that agreement is not only to establish a framework to prevent abuse arising from the use of successive fixed-term work contracts or agreements, but also to ensure the application of the principle of non-discrimination as regards fixed-term work.
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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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41. The failure to include in national legislation the headings which appear in Annex I to the Unfair Commercial Practices Directive cannot have any bearing on the interpretation of that directive. The same applies to divergences between national laws implementing that directive, referred to by the traders. By contrast, it should be recalled that, in applying national law, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the Unfair Commercial Practices Directive, in order to achieve the result pursued by that directive and thereby comply with the third paragraph of Article 288 TFEU (see, to that effect, Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 113; and Case C-69/10 Samba Diouf [2011] ECR I-7151, paragraph 60).
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60. However, in that context, attention should also be drawn to the requirement that national law be interpreted in conformity with EU law, which permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them (see, inter alia, Case C‑268/06 Impac t [2008] ECR I‑2483, paragraph 99). The principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (see Impact , paragraph 101 and the case-law cited).
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9 THUS THE APPLICANT COULD NOT HAVE BEEN UNAWARE PRIOR TO THE JUDGMENT OF THE COURT OF THE EXISTENCE IN THE HANDS OF THE COMPETENT FINANCIAL AUTHORITY OF AN AUDIT REPORT CONCERNING THREE FACTS, THAT IS TO SAY, THE AMOUNT OF THE RECEIPTS OF THE UNDERTAKING ESTABLISHED FROM THE SALES INVOICES, THE COST OF RAW MATERIALS CHECKED BY MEANS OF PURCHASE INVOICES AND THE LEVEL OF PRODUCTION OF THE UNDERTAKING .
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36 Accordingly, in the absence of Community harmonisation in this field, the conditions governing the right or obligation to become a member of a social security scheme are a matter to be determined by the legislation of each Member State (Case 110/79 Coonan [1980] ECR 1445, paragraph 12, and Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 15), as are the conditions for entitlement to benefits (Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira v Bundesanstalt für Arbeit [1997] ECR I-511, paragraph 36).
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12 THE EFFECT OF THOSE TWO PROVISIONS WHEN READ TOGETHER IS THAT IT IS FOR THE LEGISLATURE OF EACH MEMBER STATE TO LAY DOWN THE CONDITIONS CREATING THE RIGHT OR THE OBLIGATION TO BECOME AFFILIATED TO A SOCIAL SECURITY SCHEME OR TO A PARTICULAR BRANCH UNDER SUCH A SCHEME PROVIDED ALWAYS THAT IN THIS CONNEXION THERE IS NO DISCRIMINATION BETWEEN NATIONALS OF THE HOST STATE AND NATIONALS OF THE OTHER MEMBER STATES . THE COURT ACKNOWLEDGED IN ITS JUDGMENT OF 12 JULY 1979 IN CASE 266/78 BRUNORI ( 1979 ) ECR THAT NATIONAL LEGISLATURES ARE COMPETENT IN THIS FIELD .
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23. Article 2449 enables public shareholders to participate in a more significant manner in the activity of the board of directors of a company limited by shares than their status as shareholders would normally allow (see, by analogy, Commission v Germany , paragraph 62).
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16. As regards the argument concerning the alteration of the nature of the complaint, it must be borne in mind that, according to settled case-law, although the subject-matter of an application under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that article and that, consequently, the letter of formal notice, the reasoned opinion and the application to the Court must be based on the same objections, that requirement cannot be carried so far as to mean that in every case exactly the same wording must be used in each, provided that the subject-matter of the proceedings has not been extended or altered (Case C-490/04 Commission v Germany [2007] ECR I-6095, paragraphs 36 and 37, and the judgment of 17 January 2008 in Case C-152/05 Commission v Germany , not yet published in the ECR, paragraph 9).
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9. Paragraph 2(3) of the AEntG states:
‘Every employer established abroad is required to retain in Germany the necessary documents, in German, for the monitoring of compliance with the legal obligations arising from the second sentence of Paragraph 1(1), from the second sentence of Paragraph 1(2a) and from the fifth sentence of Paragraph 1(3a), throughout the whole period for which the employee remains within the scope of the present law and for at least the duration of the building project, without, however, exceeding a period of two years, so as to be able to present those documents at the building site at the request of the supervisory authorities.’
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75 EVEN IF THOSE ACTIVITIES DO NOT NECESSARILY CONFER ON PIONEER A DECISIVE INFLUENCE ON THE CONDUCT OF EACH OF THE DISTRIBUTORS , THAT DOES NOT ALTER THE FACT THAT , ON ACCOUNT OF ITS CENTRAL POSITION , IT WAS OBLIGED TO DISPLAY PARTICULAR VIGILANCE IN ORDER TO PREVENT CONCERTED EFFORTS OF THAT KIND FROM GIVING RISE TO PRACTICES CONTRARY TO THE COMPETITION RULES .
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27 As the Court has already held, the scheme underlying all the Community provisions authorizing the MMBs is based on the principle that their activities should be subject to very strict control (judgment in Case 23/84 Commission v United Kingdom [1986] ECR 3581, paragraph 40). That obligation to exercise control is particularly important since there are five separate bodies responsible for the implementation of those marketing schemes.
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40 THE ARGUMENT BASED ON THE SECOND SUBPARAGRAPH OF ARTICLE 6 ( 2 ) OF REGULATION NO 1565/79 , UNDER WHICH ' DIFFERENTIATING THE SELLING PRICE ON THE BASIS OF THE USE TO WHICH THE MILK IS PUT OR ON THE BASIS OF OTHER OBJECTIVE CRITERIA SHALL ONLY BE EXCLUDED IN SO FAR AS IT COULD LEAD TO A DISCRIMINATION BETWEEN MILK BUYERS AND IN SO FAR AS IT MAY BE AN OBSTACLE TO THE NORMAL FUNCTIONING OF THE COMMON MARKET ORGANIZATION AND , IN PARTICULAR , ITS INTERVENTION SYSTEM AND COMMUNITY AID SCHEMES ' , REQUIRES A VERY WIDE INTERPRETATION OF THAT PROVISION TO THE EFFECT THAT DIFFERENTIATION OF THE SELLING PRICE IS EXCLUDED ONLY IF IT IS ESTABLISHED THAT THERE IS A RISK OF DISCRIMINATION OR OF DISTORTION EVEN WHERE THE CRITERION OF INTENDED USE OR OTHER OBJECTIVE CRITERIA ARE IGNORED . SUCH AN INTERPRETATION IS CLEARLY CONTRARY TO THE GENERAL SCHEME OF THE COMMUNITY PROVISIONS AUTHORIZING THE MILK MARKETING BOARDS , WHICH EMBODIES THE PRINCIPLE THAT THEIR ACTIVITIES SHOULD BE SUBJECT TO VERY STRICT CONTROL . IN THE LIGHT OF THAT SCHEME IT MUST THEREFORE BE CONSIDERED THAT DIFFERENTIATION OF PRICES IS EXCLUDED IF IT IS FOUND TO ENTAIL RISKS OF DISTORTION OR OF DISCRIMINATION , EVEN IF IT IS IN CONFORMITY WITH THE CRITERION OF INTENDED USE OR OTHER OBJECTIVE CRITERIA WHICH IN THEORY OUGHT THEMSELVES TO ENSURE THAT SUCH DIFFERENTIATION IS COMPATIBLE WITH COMMUNITY LAW .
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25 The intention of the Governments of the Member States was therefore to provide that the seat of the Parliament, in Strasbourg, be the principal place where it meets in ordinary plenary sitting, and to that end to specify the mandatory number of part-sessions which must be held there.
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86
It follows that, in order to establish an infringement of the right not to give self-incriminating evidence, it is necessary for the undertaking concerned to be effectively compelled to provide information or evidence capable of proving the infringement (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 275).
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275 However, both the Orkem judgment and the recent case-law of the European Court of Human Rights require, first, the exercise of coercion against the suspect in order to obtain information from him and, second, establishment of the existence of an actual interference with the right which they define.
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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. Thirdly, as regards the rules on State aid, the Court has held on numerous occasions that the objective pursued by State measures is not sufficient to exclude those measures from classification as ‘aid’ for the purposes of Article 107 TFEU. That article does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects (see Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraphs 84 and 85 and the case-law cited).
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85. Article 87(1) EC does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects (Case C‑56/93 Belgium v Commission [1996] ECR I‑723, paragraph 79; Case C-241/94 France v Commission , paragraph 20; Case C-75/97 Belgium v Commission , paragraph 25; and Case C‑409/00 Spain v Commission , paragraph 46).
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63. Or, il est de jurisprudence constante que l’application des règlements de l’Union ne saurait être étendue jusqu’à couvrir des pratiques abusives d’opérateurs économiques (arrêts du 11 octobre 1977, Cremer, 125/76, Rec. p. 1593, point 21, et du 11 janvier 2007, Vonk Dairy Products, C‑279/05, Rec. p. I‑239, point 31).
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53. However, that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors ( John Deere v Commission , paragraph 87; Commission v Anic Partecipazioni , paragraph 117; and Thyssen Stahl v Commission , paragraph 83).
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87 According to the same case-law (Suiker Unie v Commission, paragraph 174, and Züchner, paragraph 14), although it is correct to say that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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84. It is for the national court to carry out an overall assessment of all the relevant circumstances, which include the labelling of the bottle in order to assess, more specifically, whether the producer of the drink bearing the trade name can be regarded as unfairly competing with the proprietor of the trade mark (see, to that effect, Gerolsteiner Brunnen , paragraphs 25 and 26).
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25. The mere fact that there exists a likelihood of aural confusion between a word mark registered in one Member State and an indication of geographical origin from another Member State is therefore insufficient to conclude that the use of that indication in the course of trade is not in accordance with honest practices. In a Community of 15 Member States, with great linguistic diversity, the chance that there exists some phonetic similarity between a trade mark registered in one Member State and an indication of geographical origin from another Member State is already substantial and will be even greater after the impending enlargement.
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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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44. Even if the email at issue does contain a decision, case-law provides that it is only the contract of employment which produces legal effects in respect of the persons covered by the Staff Regulations (see, to that effect, Case 329/85 Castagnoli v Commission [1987] ECR 3281, paragraphs 10 and 11, and order in Case 95/87 Contini v Commission [1988] ECR 2537, paragraph 8). As it is, it is common ground that the respondent did not raise any objection to the terms of her contract, which were explained in the accompanying letter of 19 January 2000, within the statutory time‑limits.
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11 THAT DESCRIPTION WAS NEVER ALTERED, EITHER IN THE SUCCESSIVE RENEWALS OF HIS CONTRACT OF EMPLOYMENT OR IN THE LETTER OF 22 JANUARY 1985, IN WHICH THE COMMISSION MERELY COMMUNICATED TO HIM THE DATE ON WHICH HIS EMPLOYMENT WAS FINALLY TO CEASE . IT MUST THEREFORE BE CONCLUDED THAT THE ACT ADVERSELY AFFECTING MR CASTAGNOLI WAS THE CONTRACT OF EMPLOYMENT SIGNED ON 20 FEBRUARY 1984 .
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25 It is for the Court, where it makes use of the possibility of limiting the effect on past events of a declaration in preliminary ruling proceedings that a Community regulation is invalid, to decide whether an exception to that temporal limitation of the effect of its judgment may be made in favour of the party to the main proceedings which brought the action before the national court against the national measure implementing the regulation, or whether, conversely, a declaration of invalidity applicable only to the future is an adequate remedy even for that party (see the Produits de Maïs judgment, cited above, paragraph 18).
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19. In that regard, the Court has already held that Article 7(1) of Directive 2003/88 does not preclude, as a rule, national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise that right. Thus, the right to paid annual leave is not extinguished at the end of the reference period laid down by national law where the worker was on sick leave for the whole or part of the leave year and has not actually had the opportunity to exercise that right (see Joined Cases C‑350/06 and C‑520/06 Schultz-Hoff and Others [2009] ECR I‑0000, paragraphs 43 and 55).
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55. Second, as is clear from paragraph 52 above, the right to paid annual leave is not extinguished at the end of the leave year and/or of a carry‑over period laid down by national law where the worker was on sick leave for the whole or part of the leave year and has not actually had the opportunity to exercise the right conferred on him by Directive 2003/88.
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40. As regards the implementation of a decision requiring the recovery of illegal aid, where a Member State recovers that aid by means other than a cash payment, it must provide the Commission with all the information enabling it to establish that the means chosen constitute an adapted implementation of the decision.
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63. Next, it must be pointed out that the aims of Regulation No 3887/92 are, as set out in the seventh and ninth recitals in its preamble, to monitor effectively compliance with the provisions on Community aid and to adopt provisions which prevent and penalise irregularities and fraud effectively (see Case C-63/00 Schilling and Nehring [2002] ECR I-4483, paragraph 25, and Gerken , paragraph 41).
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25 According to the first, seventh and ninth recitals in the preamble to Regulation No 3887/92, the objectives of the regulation are to enable the reform of the common agricultural policy to be implemented efficiently, to monitor compliance with the provisions on Community aid effectively, and to adopt provisions to prevent and penalise irregularities and fraud effectively.
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57. In that regard, the Member States must ensure that the detailed national implementing rules take account of the limits flowing from the directive itself.
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22. It must be borne in mind in this regard that, according to settled case‑law, the necessity for uniform application and accordingly for uniform interpretation of a Community measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3, and Joined Cases C-261/08 and C-348/08 Zurita García and Choque Cabrera [2009] ECR I‑0000, paragraph 54).
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3 WHEN A SINGLE DECISION IS ADDRESSED TO ALL THE MEMBER STATES THE NECESSITY FOR UNIFORM APPLICATION AND ACCORDINGLY FOR UNIFORM INTERPRETATION MAKES IT IMPOSSIBLE TO CONSIDER ONE VERSION OF THE TEXT IN ISOLATION BUT REQUIRES THAT IT BE INTERPRETED ON THE BASIS OF BOTH THE REAL INTENTION OF ITS AUTHOR AND THE AIM HE SEEKS TO ACHIEVE, IN THE LIGHT IN PARTICULAR OF THE VERSIONS IN ALL FOUR LANGUAGES .
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21 To interpret Article 26 of the Sixth Directive as applying solely to traders who are travel agents or tour operators within the normal meaning of those terms would mean that identical services would come under different provisions depending on the formal classification of the trader.
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31
The Court has consistently held that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, the judgments of 2 October 1997, Kording, C‑100/95, EU:C:1997:453, paragraph 16, and of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraph 39).
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39. The Court has consistently held that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Case C‑1/95 Gerster [1997] ECR I-5253, paragraph 30, and Case C‑123/10 Brachner [2011] ECR I-0000, paragraph 56).
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58. First, as the Advocate General pointed out at point 65 of her Opinion and as is apparent from the legislative history of the directive, the exemptions and derogations provided for in Article 9 of the directive apply not only to media undertakings but also to every person engaged in journalism.
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68. Observance of the right to be heard in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed constitutes a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings (see Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9).
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9OBSERVANCE OF THE RIGHT TO BE HEARD IS IN ALL PROCEEDINGS IN WHICH SANCTIONS , IN PARTICULAR FINES OR PENALTY PAYMENTS , MAY BE IMPOSED A FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW WHICH MUST BE RESPECTED EVEN IF THE PROCEEDINGS IN QUESTION ARE ADMINISTRATIVE PROCEEDINGS .
ARTICLE 19 ( 1 ) OF COUNCIL REGULATION NO 17 OBLIGES THE COMMISSION , BEFORE TAKING A DECISION IN CONNEXION WITH FINES , TO GIVE THE PERSONS CONCERNED THE OPPORTUNITY OF PUTTING FORWARD THEIR POINT OF VIEW WITH REGARD TO THE COMPLAINTS MADE AGAINST THEM .
SIMILARLY ARTICLE 4 OF REGULATION NO 99/63 OF THE COMMISSION OF 25 JULY 1963 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963 , P . 47 ) ON THE HEARING PROVIDED FOR ARTICLE 19 OF REGULATION NO 17 PROVIDES THAT THE COMMISSION SHALL IN ITS DECISIONS DEAL ONLY WITH THOSE OBJECTIONS RAISED AGAINST UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS IN RESPECT OF WHICH THEY HAVE BEEN AFFORDED THE OPPORTUNITY OF MAKING KNOWN THEIR VIEWS .
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61. It follows from the foregoing that, by giving to retention permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to a planning permission preceding the carrying out of works and development, when, pursuant to Articles 2(1) and 4(1) and (2) of Directive 85/337 as amended, projects for which an environmental impact assessment is required must be identified and then – before the grant of development consent and, therefore, necessarily before they are carried out – must be subject to an application for development consent and to such an assessment, Ireland has failed to comply with the requirements of that directive.
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41. A court’s power to determine of its own motion whether a term is unfair must be regarded as constituting a proper means both of achieving the result sought by Article 6 of Directive 93/13, namely preventing an individual consumer from being bound by an unfair term, and of contributing to the attainment of the objective of Article 7, since, if the court undertakes such an examination, that may act as a deterrent and contribute to preventing unfair terms being used by traders in contracts concluded with consumers (Case C‑473/00 Cofidis [2002] ECR I‑10875, paragraph 32; Mostaza Claro , paragraph 27; and the order in Pohotovost’ , paragraph 41).
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32 It must be noted that the Court ruled in paragraph 28 of Océano Grupo Editorial and Salvat Editores that the court's power to determine of its own motion whether a term is unfair constitutes a means both of achieving the result sought by Article 6 of the Directive, namely preventing an individual consumer from being bound by an unfair term, and of contributing to achieving the aim of Article 7, since if the court undertakes such an examination, that may act as a deterrent and contribute to preventing unfair terms in contracts concluded between consumers and sellers or suppliers.
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63. In this respect the Member States unarguably enjoy broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy.
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32
It has also been held that all the relevant facts must be taken into consideration in determining normal residence as the permanent centre of interests of the person concerned (see, by analogy, judgments in Schäflein v Commission, 284/87, EU:C:1988:414, paragraph 10; Ryborg, C‑297/89, EU:C:1991:160, paragraph 20; Louloudakis, C‑262/99, EU:C:2001:407, paragraph 55; Alevizos, C‑392/05, EU:C:2007:251, paragraph 57, and I, C‑255/13, EU:C:2014:1291, paragraphs 45 and 46).
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20 It follows that all the relevant elements of fact must, in the light of the criteria laid down in the abovementioned provisions, be taken into consideration in determining normal residence as the permanent centre of interests of the person concerned.
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32. First of all, it should be borne in mind that it is not for the Court to assign a legal classification to the actions brought by the plaintiffs before the national court claiming reimbursement of a duty unduly paid or claiming compensation for damage suffered (see Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I‑1727, paragraph 81, and Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraph 201), and that an action for damages may coexist with an action for the recovery of sums unduly paid (see, to that effect, Comateb and Others , paragraph 34).
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73. It follows that, to that extent also, the effect of the support scheme at issue in the main proceedings is, at least potentially, to curb electricity imports from other Member States (see, to that effect, Commission v Ireland , 249/81, EU:C:1982:402, paragraphs 27 to 29).
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29 THAT IS THE CASE WHERE , AS IN THIS INSTANCE , SUCH A RESTRICTIVE PRACTICE REPRESENTS THE IMPLEMENTATION OF A PROGRAMME DEFINED BY THE GOVERNMENT WHICH AFFECTS THE NATIONAL ECONOMY AS A WHOLE AND WHICH IS INTENDED TO CHECK THE FLOW OF TRADE BETWEEN MEMBER STATES BY ENCOURAGING THE PURCHASE OF DOMESTIC PRODUCTS , BY MEANS OF AN ADVERTISING CAMPAIGN ON A NATIONAL SCALE AND THE ORGANIZATION OF SPECIAL PROCEDURES APPLICABLE SOLELY TO DOMESTIC PRODUCTS , AND WHERE THOSE ACTIVITIES ARE ATTRIBUTABLE AS A WHOLE TO THE GOVERNMENT AND ARE PURSUED IN AN ORGANIZED FASHION THROUGHOUT THE NATIONAL TERRITORY .
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73 Thus, as is stated in the 20th and 21st recitals of the preamble to the Directive, an element of the human body may be part of a product which is patentable but it may not, in its natural environment, be appropriated.
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91. Economic operators none the less have an interest in an instrument such as the Community trade mark, made available to them by the Community legislature, which enables them to avoid filing multiple national trade mark applications, with all the translation costs that that entails (see on this point, by way of analogy, the arguments put forward by BASF AG relating to the costs of translating European patent specifications set out at paragraph 12 of the judgment in Case C-44/98 BASF [1999] ECR I-6269). For persuasive evidence of that interest, it is sufficient to note the considerable number of Community trade mark applications which, surpassing initial predictions, have been filed since the Office was set up.
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12 BASF contends in particular that the costs of translating patent specifications are very high, so that many patent holders are forced to be selective in filing translations and therefore to forgo patent protection in some Member States. The requirement at issue thus prevents those patent holders from benefiting from the effects of patents granted in all the Member States of the Community. According to BASF, this restriction results in the division of the internal market, with a patent being protected in some Member States (the `protected zone') but not in others (the `free zone'). The requirement in question therefore constitutes an obstacle to the free movement of goods contrary to Article 30 of the Treaty, which is not justified under Article 36.
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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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50. On the basis of those considerations, the Court held that the existence of a certain degree of integration may be regarded as established by a finding that the student in question has resided in the host Member State for a certain length of time ( Bidar , paragraph 59).
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59. On the other hand, the existence of a certain degree of integration may be regarded as established by a finding that the student in question has resided in the host Member State for a certain length of time.
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52. In those circumstances, the activity of praticante-patrocinante cannot be described as a " regulated profession" within the meaning of Directive 89/48 separate from that of " avvocato" .
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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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28. It must be pointed out that the possibility for a litigant to plead before the court hearing its action the invalidity of provisions in European Union acts presupposes that the party in question had no right of direct action under Article 263 TFEU by which it could challenge those provisions (see judgments in TWD Textilwerke Deggendorf (EU:C:1994:90), paragraph 23, and Bolton Alimentari , C‑494/09, EU:C:2011:87, paragraph 22).
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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 As for the additional implementing measures which the Regions of Flanders and Wallonia are in the course of adopting, it is appropriate to point out that under the third paragraph of Article 189 of the Treaty, directives are binding upon each Member State to which they are addressed as to the result to be achieved. It follows from settled case-law that that obligation requires compliance with the time-limits set by directives (see, among others, Case 10/76 Commission v Italy [1976] ECR 1359, paragraphs 11 and 12, and Case C-176/00 Commission v Greece [2001] ECR I-2063, paragraph 7).
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7 In that regard, it must be borne in mind that, in accordance with the third paragraph of Article 249 EC, a directive is binding, as to the results to be achieved, upon each Member State to which it is addressed. It has consistently been held that this obligation entails compliance with the periods set by directives (see, inter alia, Case 10/76 Commission v Italy [1976] ECR 1359, paragraphs 11 and 12, and Case C-69/99 Commission v United Kingdom [2000] ECR I-10979, paragraph 21).
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40 As regards trade marks composed of words, such as the mark at issue here, descriptiveness must be determined not only in relation to each word taken separately but also in relation to the whole which they form. Any perceptible difference between the combination of words submitted for registration and the terms used in the common parlance of the relevant class of consumers to designate the goods or services or their essential characteristics is apt to confer distinctive character on the word combination enabling it to be registered as a trade mark.
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22. The principle of cooperation in good faith, laid down in Article 10 EC, requires the issuing institution to carry out a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable in the matter of social security and, consequently, to guarantee the correctness of the information contained in an E 101 certificate ( FTS , paragraph 51).
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51 The principle of sincere cooperation, laid down in Article 5 of the EC Treaty (now Article 10 EC), requires the competent institution to carry out a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable in the matter of social security and, consequently, to guarantee the correctness of the information contained in an E 101 certificate.
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14. In that regard, whilst it is true that direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with EU law (see, inter alia, Case C‑72/09 Établissements Rimbaud [2010] ECR I‑0000, paragraph 23).
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124. It should be made clear that, in order to determine the loss or damage for which reparation may be granted, the national court may inquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, in particular, he availed himself in time of all the legal remedies available to him ( Brasserie du Pêcheur and Factortame , paragraph 84).
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84. In particular, in order to determine the loss or damage for which reparation may be granted, the national court may inquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, in particular, he availed himself in time of all the legal remedies available to him.
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140. It should be noted, first, that the procedure laid down in Article 228(2) EC is aimed at inducing a defaulting Member State to comply with a judgment establishing a failure to fulfil obligations, thereby ensuring that Community law is in fact applied, and the measures provided for by that provision, namely a lump sum and a penalty payment, are both intended to achieve this objective (Case C‑304/02 Commission v France , paragraph 80).
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52. The principle of the protection of confidential information and of business secrets must be observed in such a way as to reconcile it with the requirements of effective legal protection and the rights of defence of the parties to the dispute (see, by analogy, Case C-438/04 Mobistar [2006] ECR I‑6675, paragraph 40) and, in the case of judicial review or a review by another body which is a court or tribunal within the meaning of Article 234 EC, in such a way as to ensure that the proceedings as a whole accord with the right to a fair trial.
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40. In that regard, it is appropriate to note that the body responsible for hearing an appeal against a decision of the national regulatory authority in accordance with Article 4 of the Framework Directive must be able to have at its disposal all the information necessary in order to decide in full knowledge of the facts on the merits of the appeal, including information that is subject to confidentiality. However, the protection of such information and business confidentiality must be guaranteed and must be adjusted to reconcile it with the requirements of effective legal protection and the rights of defence of the parties to the dispute.
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52. Regulation No 261/2004 has, in those measures, the objective of repairing, inter alia, damage consisting, for the passengers concerned, in a loss of time which, given that it is irreversible, can be redressed only by compensation.
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14FINALLY AS TO THE THIRD QUESTION , IT IS ESTABLISHED - AS THE COURT HELD IN ITS AFORESAID JUDGMENT OF 16 MARCH 1978 IN CASE 117/77 - THAT BY VIRTUE OF THE PROVISIONS OF ARTICLES 93 ( 1 ) AND 96 OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ) THE AMOUNT OF BENEFITS PROVIDED UNDER ARTICLE 22 OF REGULATION NO 1408/71 ' ' SHALL BE REFUNDED BY THE COMPETENT INSTITUTION TO THE INSTITUTION WHICH PROVIDED THE SAID BENEFITS AS SHOWN IN THE ACCOUNTS OF THAT INSTITUTION ' ' , AND MOREOVER THAT IT IS TO BE ' ' FULLY ' ' REFUNDED .
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15IT IS CLEAR FROM THE WORDS ' ' TREATMENT APPROPRIATE TO HIS CONDITION ' ' CONTAINED IN ARTICLE 22 ( 1 ) ( C ) THAT THE BENEFITS IN KIND FOR WHICH THE WORKER IS AUTHORIZED IN ACCORDANCE WITH THIS PROVISION TO GO TO ANOTHER MEMBER STATE COVER ALL TREATMENT CALCULATED TO BE EFFECTIVE FOR THE SICKNESS OR DISEASE FROM WHICH THE PERSON CONCERNED SUFFERS .
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179 In competition matters, the principle that action must be taken within a reasonable period must be observed in administrative proceedings conducted pursuant to Regulation No 17 which may lead to the penalties provided for therein. In the event of an action brought against an administrative decision, it must also be observed in the judicial proceedings before the Community judicature (Baustahlgewebe, paragraph 21).
(i) Complaints regarding the administrative procedure conducted by the Commission
- Division of the administrative procedure into two stages
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48. It is settled case-law that if the national court finds that the national provision laying down the time-limit is not compatible with the requirements of Community law and that no compatible interpretation of that provision is possible, that court must refuse to apply it (see, to that effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 21, Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26, and Case C-188/00 Kurz [2002] ECR I-10691, paragraph 69).
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69 Furthermore, every court of a Member State must apply Community law in its entirety and protect the rights which Community law confers directly on individuals, setting aside any provision of national law which may conflict with it (see Eyüp, paragraph 42, and, by analogy, Case 106/77 Simmenthal [1978] ECR 629, paragraph 21).
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54. Second, as was explained in paragraphs 38 and 39 of the present judgment, the aim of the Directive is to promote balanced participation of employers and workers in activities related to protection against and prevention of occupational risks. It is therefore by giving precedence to the internal organisation of such activities that the best possible effectiveness of the Directive can be ensured.
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22. It follows that questions relating to European Union law enjoy a presumption of relevance. Accordingly, the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union 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, to that effect, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2010] ECR I‑11421, paragraph 25, and Sbarigia , paragraph 20).
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25. As regards Mr Cipolla’s pleas of inadmissibility, it should be recalled that 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 Case C-466/04 Acereda Herrera [2006] ECR I-0000, paragraph 48).
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38. Or, il convient de rappeler, à cet égard, que les déchets ont une nature particulière, si bien que leur accumulation, avant même qu’ils ne deviennent dangereux pour la santé, constitue, compte tenu notamment de la capacité limitée de chaque région ou localité à les recevoir, un danger pour l’environnement (arrêt Commission/Italie, C‑297/08, EU:C:2010:115, point 105).
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21. In order to take account of that case-law and more specifically in response to the judgment in Aziz (C‑415/11, EU:C:2013:164), Law 1/2013 amended, inter alia, the articles in the Civil Procedure Code relating to the enforcement procedure of mortgaged assets. Thus, for proceedings opened after the entry into force of Law 1/2013, the defendant’s objection to enforcement, based on the unfairness of a contractual term, brought within the normal 10-day period from the date of service of the document ordering enforcement, henceforth allows the suspension of the mortgage enforcement proceedings until the objection to enforcement has been adjudicated upon.
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44. In replying to that question, it should be noted first that the system of protection introduced by the directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge ( Banco Español de Crédito , paragraph 39).
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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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52 Here, it must be noted that, as the Court has consistently held, Articles 2 and 3 of Regulation No 729/70 permit the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various sectors of agricultural production, leaving the Member States to bear the burden of any other sum paid, and in particular any amounts which the national authorities wrongly believed themselves authorised to pay in the context of the common organisation of the markets (Case 11/76 Netherlands v Commission [1979] ECR 245, paragraph 8; Case 18/76 Germany v Commission [1979] ECR 343, paragraph 7; and Case C-48/91 Netherlands v Commission, cited above, paragraph 14).
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8IN CASES WHERE , VIEWED OBJECTIVELY , COMMUNITY LAW HAS BEEN INCORRECTLY APPLIED ON THE BASIS OF AN INTERPRETATION ADOPTED IN GOOD FAITH BY THE NATIONAL AUTHORITIES IT IS NOT POSSIBLE AS A GENERAL RULE , EITHER UNDER COMMUNITY LAW OR UNDER MOST OF THE NATIONAL LEGAL SYSTEMS , TO RECOVER SUMS PAID IN ERROR FROM THE RECIPIENTS AND IT IS NOT POSSIBLE TO UNDERTAKE ADMINISTRATIVE OR JUDICIAL PROCEDURES AGAINST THOSE RESPONSIBLE .
CONSEQUENTLY SUCH A SITUATION CANNOT FALL UNDER ARTICLE 8 BUT MUST , ON THE CONTRARY , BE EXAMINED IN THE LIGHT OF THE GENERAL PROVISIONS OF ARTICLES 2 AND 3 OF THE SAME REGULATION , ACCORDING TO WHICH REFUNDS GRANTED AND INTERVENTION UNDERTAKEN ' ' IN ACCORDANCE WITH THE COMMUNITY RULES ' ' WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ARE TO BE FINANCED BY THE EAGGF .
THOSE PROVISIONS PERMIT THE COMMISSION TO CHARGE TO THE EAGGF ONLY SUMS PAID IN ACCORDANCE WITH THE RULES LAID DOWN IN THE VARIOUS SECTORS OF AGRICULTURAL PRODUCTION WHILE LEAVING THE MEMBER STATES TO BEAR THE BURDEN OF ANY OTHER SUM PAID , AND IN PARTICULAR ANY AMOUNTS WHICH THE NATIONAL AUTHORITIES WRONGLY BELIEVED THEMSELVES AUTHORIZED TO PAY IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKETS .
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55. En particulier, la Cour a déjà jugé que, en vertu de l’article 4, paragraphe 2, de la directive 93/13, l’exigence selon laquelle une clause contractuelle doit être rédigée de manière claire et compréhensible doit s’entendre comme imposant non seulement que la clause concernée soit intelligible pour le consommateur sur un plan grammatical, mais également que le contrat expose de manière transparente les modalités de calcul des intérêts annuels du crédit, de sorte que ce consommateur soit mis en mesure d’évaluer, sur le fondement de critères précis et intelligibles, les conséquences économiques qui en découlent pour lui (voir, par analogie, arrêt Kásler et Káslerné Rábai, C‑26/13, EU:C:2014:282, point 75).
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58. In the judgment in ETI and Others (EU:C:2007:775) to which the Court of Justice expressly referred in paragraph 144 of the judgment in ThyssenKrupp Nirosta v Commission (EU:C:2011:191), the Court of Justice held that the Commission was entitled to impute the infringement to a company which had not committed the infringement where the entity which had done so continued to exist as an economic operator on other markets (see judgment in ETI and Others , EU:C:2007:775, paragraph 45). The Court of Justice based that assessment on the fact that, at the time of the infringement, the companies concerned were held by the same public entity (see judgments in ETI and Others , EU:C:2007:775, paragraph 50, and Versalis v Commission , EU:C:2013:386, paragraph 56).
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144. As to the circumstances in which an entity that has not committed the infringement may none the less be penalised for that infringement, the Court has stated that this situation arises if the entity that has committed the infringement has ceased to exist, either in law or economically, since a penalty imposed on an undertaking which is no longer economically active is likely to have no deterrent effect (Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 40).
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6IT FOLLOWS FROM THESE CONSIDERATIONS THAT INDIVIDUALS MAY BE REQUIRED , IN THE SECTORS COMING WITHIN THE ECONOMIC POLICY OF THE COMMUNITY , TO ACCEPT WITHIN REASONABLE LIMITS CERTAIN HARMFUL EFFECTS ON THEIR ECONOMIC INTERESTS AS A RESULT OF A LEGISLATIVE MEASURE WITHOUT BEING ABLE TO OBTAIN COMPENSATION FROM PUBLIC FUNDS EVEN IF THAT MEASURE HAS BEEN DECLARED NULL AND VOID . IN A LEGISLATIVE FIELD SUCH AS THE ONE IN QUESTION , IN WHICH ONE OF THE CHIEF FEATURES IS THE EXERCISE OF A WIDE DISCRETION ESSENTIAL FOR THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY , THE COMMUNITY DOES NOT THEREFORE INCUR LIABILITY UNLESS THE INSTITUTION CONCERNED HAS MANIFESTLY AND GRAVELY DISREGARDED THE LIMITS ON THE EXERCISE OF ITS POWERS .
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35. However, that interpretation rests on the link of functional equivalence which exists between the criteria set out in Article 8(1) of Directive 91/414 as transitional measures and those laid down in Article 4 of that directive ( Hogan Lovells International , paragraphs 33 to 46). There is no such link of functional equivalence between the criteria laid down in Article 8(4) of Directive 91/414 and those in Article 4 thereof.
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40. With regard to the assessment of that new active substance, Article 8(1), first subparagraph, point (a), of Directive 91/414 requires, first, that it be ‘found that the dossier on the active substance satisfies the requirements of Annexes II and III in relation to the projected uses’. In addition, Article 8(1), first subparagraph, point (b), requires the Member State to establish that the active substance can satisfy the requirements of Article 5(1) of the directive and also that ‘the plant protection product may be expected to satisfy the requirements of Article 4(1)(b) to (f)’.
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61. The Court must therefore ascertain whether TU has demonstrated to the requisite legal standard that at the time of notification of the statement of objections, that is to say, on 3 July 1996, it experienced difficulties in defending itself which were the consequence of the excessive duration of the administrative procedure.
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18. As the Court held in Bötel , paragraph 14, although compensation such as that at issue in the main proceedings does not derive as such from the contract of employment, it is nevertheless paid by the employer by virtue of legislative provisions and under a contract of employment. Staff committee members must necessarily be employees of the undertaking, to be able to serve on that undertaking ' s staff committee.
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14 Although compensation such as that at issue in the main proceedings does not derive as such from the contract of employment, it is nevertheless paid by the employer by virtue of legislative provisions and under a contract of employment. Staff council members are necessarily employees of the undertaking and are entrusted with the task of safeguarding staff interests, thus promoting harmonious working relationships within the undertaking, which is in its interests.
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8 IL RESULTE D' UNE JURISPRUDENCE CONSTANTE DE LA COUR QUE L' INTERDICTION EDICTEE PAR LES ARTICLES 9 ET 12 DU TRAITE, QUANT AUX TAXES D' EFFET EQUIVALENT, VISE TOUTE TAXE EXIGEE A L' OCCASION OU EN RAISON DE L' IMPORTATION ET QUI, FRAPPANT SPECIFIQUEMENT UN PRODUIT IMPORTE, A L' EXCLUSION DU PRODUIT NATIONAL SIMILAIRE, A POUR RESULTAT, EN ALTERANT SON PRIX DE REVIENT, D' AVOIR SUR LA LIBRE CIRCULATION DES MARCHANDISES LA MEME INCIDENCE RESTRICTIVE QU' UN DROIT DE DOUANE .
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48. In making that assessment, it is necessary to take into account all the protected interests involved and, in particular, the right to property (see, to that affect, Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 79) and also the welfare requirements of animals (see, to that effect, Jippes and Others , paragraph 79).
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79 The Protocol seeks to reinforce the obligation to take the health and protection of animals into consideration by providing that full regard must be had to the welfare requirements of animals in the formulation and implementation of the Community's policy, particularly in relation to the common agricultural policy, whilst at the same time recognising that differences currently exist between the legislation of the respective Member States and the various sentiments harboured within those Member States. Fulfilment of that obligation can be verified, in particular, in the context of a review of the proportionality of the measure.
The principle of proportionality
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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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68
There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment in Italy v Commission, C‑280/14 P, EU:C:2015:792, paragraph 52 and the case-law cited).
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52. There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect (judgment in Comitato ‘Venezia vuole vivere’ and Others v Commission , C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 153 and the case-law cited). However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment in General Motors v Commission , C‑551/03 P, EU:C:2006:229, paragraph 54). Moreover, where an appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to that distortion (see, to that effect, Aalborg Portland and Others v Commission , 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, EU:C:2004:6, paragraph 50, and PepsiCo v Grupo Promer Mon Graphic , C‑281/10 P, EU:C:2011:679, paragraph 78).
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28 Under the Austrian legislation, the cost of medicinal products included on the register is automatically borne by the scheme as a matter of principle, whereas the medicinal products not included in that register are not, unless authorised by the principal doctor or supervising doctor.
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46. However, for a special tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the special tax is necessarily allocated for the financing of the aid. It is only in the event of such hypothecation that the revenue from the special tax has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market (see, to that effect, Case C-174/02 Streekgewest [2005] ECR I-0000, paragraph 26, and Case C-175/02 Pape [2005] ECR I-0000, paragraph 15).
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15. For a tax, or part of a tax, to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules. In the event of such hypothecation, the revenue from the tax has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market (see, to that effect, Case 47/69 France v Commission [1970] 487, paragraphs 17, 20 and 21, and the judgment in SWNB , paragraph 26).
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53. By proceeding in that manner, the Court of First Instance did not err in law.
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20. As the Court has held before on many occasions, any pecuniary charge, however small, and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect, within the meaning of Article 23 EC (see Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18; Legros and Others , paragraph 13; Case C-426/92 Deutsches Milch-Kontor [1994] ECR I-2757, paragraph 50; Joined Cases C-485/93 and C-486/93 Simitzi [1995] ECR I-2655, paragraph 15; and Case C-347/95 UCAL [1997] ECR I-4911, paragraph 18).
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50 The Court has consistently held that any pecuniary charge, whatever its designation or mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having an effect equivalent to a customs duty within the meaning of Articles 9, 12, 13 and 16 of the Treaty, even if it is not imposed on behalf of the State (see, in particular, the judgment in Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18).
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62. That general presumption does not exclude the right of those interested parties to demonstrate that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001.
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25. According to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-41/00 P Interporc v Commission [2003] ECR I-2125, paragraph 15).
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15. By application lodged at the Registry of the Court of First Instance on 12 April 1996, the applicant and two other German firms brought an action for annulment of the Commission's decision of 26 January 1996 (Case T-50/96).
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25 Moreover, the Directive requires that, if a Member State chooses to penalize breach of the prohibition of discrimination by the award of compensation, that compensation must be such as to guarantee real and effective judicial protection, have a real deterrent effect on the employer and must in any event be adequate in relation to the damage sustained. Purely nominal compensation would not satisfy the requirements of an effective transposition of the Directive (Von Colson and Kamann, paragraphs 23 and 24).
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47. It follows that the application of Article 92(1) of the Treaty only requires it to be determined whether under a particular statutory scheme a State measure is such as to favour "certain undertakings or the production of certain goods" over others which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure in question (Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I-8365, paragraph 41; see also to that effect Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 41, and Case C-75/97 Belgium v Commission , cited above, paragraph 26). If so, the measure satisfies the condition of selectivity which defines State aid as laid down by that provision.
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26 According to established case-law, it is necessary to determine whether the increased reductions under the Maribel bis/ter scheme entail advantages accruing exclusively to certain undertakings or certain sectors and do not therefore fulfil the condition of specificity which constitutes one of the characteristics of the concept of State aid namely the selective character of the measures in question (see, to this effect, the judgment in France v Commission, cited above, paragraph 24, and Ecotrade, cited above, paragraph 40).
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31. Il s’ensuit qu’une situation telle que celle en cause au principal ne relève pas du cadre général établi par l’article 2, paragraphe 2, de la directive 2000/78 en vue de lutter contre certaines discriminations.
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31. However, Article 9(1)(c) of the Directive permits authorisation by way of derogation, in compliance with the conditions set out in that provision, of the hunting of the species listed in Annex II thereto during the periods referred to in Article 7(4) and thus in particular during the rearing season and during the various stages of reproduction (see, to that effect, Case C-182/02 Ligue pour la protection des oiseaux and Others [2003] ECR I-12105, paragraphs 9 to 11, and Case C‑135/04 Commission v Spain [2005] ECR I-0000, paragraph 17).
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17. Article 9(1)(c) does permit authorisation, in compliance with the conditions set out in that provision, for the hunting of species listed in Annex II during the periods referred to in Article 7(4) of the Directive, inter alia during their return to their rearing grounds (see, to that effect, Case C-182/02 Ligue pour la protection des oiseaux and Others [2003] ECR I‑12105, paragraphs 9 to 11).
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52. In those circumstances, as the Commission correctly asserts, a difference in treatment such as that established by the Spanish legislation at issue in the main proceedings must be analysed in the light of clause 4(1) of the framework agreement.
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41. In that context, the Court has stated on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task (see, inter alia, judgments in Aziz , C‑415/11, EU:C:2013:164, paragraph 46; Barclays Bank , C‑280/13, EU:C:2014:279, paragraph 34; and Sánchez Morcillo and Abril Garcia , C‑169/14, EU:C:2014:2099, paragraph 24).
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34. In that context, the Court has already stated on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task ( Aziz EU:C:2013:164, paragraph 46 and the case-law cited).
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57. Or, selon une jurisprudence constante, des exigences impératives relevant de la protection de l’environnement peuvent justifier des mesures nationales susceptibles d’entraver le commerce intracommunautaire, pourvu que ces mesures soient proportionnées à l’objet visé (voir, en ce sens, arrêts Aher-Waggon, précité, points 19 et 20; du 14 décembre 2004, Commission/Allemagne, C‑463/01, Rec. p. I‑11705, point 75, ainsi que Radlberger Getränkegesellschaft et S. Spitz, C‑309/02, Rec. p. I‑11763, point 75).
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25. As regards the scope ratione personae of that provision, it need merely be pointed out that, under Article 17(1) EC, every person holding the nationality of a Member State is a citizen of the Union. In addition, Article 17(2) EC attributes to citizens of the Union the rights conferred and duties imposed by the EC Treaty, including those mentioned in Artic le 18(1) EC (Case C-192/05 Tas-Hagen and Tas [2006] ECR I‑10451, paragraph 18, and Case C‑499/06 Nerkowska [2008] ECR I‑0000, paragraph 21).
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18. Regarding the scope ratione personae of that provision, suffice it to state that, under Article 17(1) EC, every person holding the nationality of a Member State is a citizen of the Union. Furthermore, Article 17(2) EC attributes to citizens of the Union the rights conferred and duties imposed by the Treaty, including those mentioned in Article 18(1) EC.
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19. The Italian Republic claims that the Court should:
– annul the contested letter of 29 July 2003 and all the measures connected with and preliminary to it;
– order the Commission to pay the costs.
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44. For an argument based on such a justification to succeed, the Court requires, however, that a direct link be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (Case C-484/93 Svensson and Gustavsson [1995] ECR I-3955, paragraph 18; ICI , paragraph 29; Manninen , paragraph 42; and Keller Holding , paragraph 40), with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question ( Manninen , paragraph 43, and Case C-293/06 Deutsche Shell [2008] ECR I-0000, paragraph 39).
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40. In that respect, it should be pointed out that, in paragraphs 28 and 21 respectively of the judgments in Bachmann and Commission v Belgium , the Court recognised that the need to maintain the cohesion of a tax system can justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. However, for an argument based on such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, to that effect, Case C‑484/93 Svensson and Gustavsson [1995] ECR I-3955, paragraph 18; ICI , paragraph 29; and Manninen , paragraph 42).
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45. The terms extraction and re-utilisation must be interpreted in the light of the objective pursued by the sui generis right. It is intended to protect the maker of the database against ‘acts by the user which go beyond [the] legitimate rights and thereby harm the investment’ of the maker, as indicated in the 42nd recital of the preamble to the directive.
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36. According to that wording, the right to reside within the territory of the Member States which is conferred directly on every citizen of the Union by Article 18 EC is not unconditional. It is conferred subject to the limitations and conditions laid down by the Treaty and by the measures adopted to give it effect (Case C-456/02 Trojani [2004] ECR I-7573, paragraphs 31 and 32).
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32. That right is not unconditional, however. It is conferred subject to the limitations and conditions laid down by the Treaty and by the measures adopted to give it effect.
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35. However, although it cannot be denied that such grounds are among those which, under Article 30 EC, may be relied on by a Member State in order to justify such an obligation, and that, in the absence of harmonising rules, the Member States are free to decide on their intended level of protection of health and life of humans (Case C‑293/94 Brandsma [1996] ECR I-3159, paragraph 11, and Commission v Portugal , paragraph 44), the fact remains that an exception to the principle of the free movement of goods may be justified under that article only if the national authorities show that it is necessary in order to attain one or more objectives mentioned in that article and that it is in conformity with the principle of proportionality (Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 40; Case C‑358/95 Morellato [1997] ECR I-1431, paragraph 14; ATRAL , paragraph 67; and Commission v Italy , paragraph 22).
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39. In addition, the Court has held that the provisions of that agreement are not directly applicable and are not such as to create rights upon which individuals may rely directly before the courts by virtue of Community law (see, to that effect, Case C‑149/96 Portugal v Council [1999] ECR I‑8395, paragraphs 42 to 48; Joined Cases C‑300/98 and C‑392/98 Dior and Others [2000] ECR I‑11307, paragraphs 44 and 45, and Case C‑245/02 Anheuser-Busch [2004] ECR I‑10989, paragraph 54).
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48 That interpretation corresponds, moreover, to what is stated in the final recital in the preamble to Decision 94/800, according to which `by its nature, the Agreement establishing the World Trade Organisation, including the Annexes thereto, is not susceptible to being directly invoked in Community or Member State courts'.
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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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65. A commitment of that type arises from Article 11 of the 1957 Agreement, as amended by the Exchange of Notes of 29 January and 13 March 1992 and by Article 6 of the 1978 Protocol. The Kingdom of the Netherlands has maintained that commitment despite the renegotiation of the 1957 Agreement which led to the Exchange of Notes of October 1992. By proceeding in that way, the Kingdom of the Netherlands has thus infringed the exclusive external competence of the Community which results from Article 1(3) of Regulation No 2409/92 (see, to that effect, Commission v Denmark , paragraphs 97 to 100; Commission v Sweden , paragraphs 93 to 96; Commission v Finland , paragraphs 98 to 101; Commission v Belgium , paragraphs 110 to 113; Commission v Luxembourg , paragraphs 103 to 106; Commission v Austria , paragraphs 112 to 115, and Commission v Germany , paragraphs 123 to 126).
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105 It follows that, since the entry into force of Regulation No 2409/92, the Grand Duchy of Luxembourg has no longer been entitled, despite the renegotiation of the 1986 Agreement, to enter on its own into or maintain in force international commitments concerning the fares and rates to be charged by carriers of non-member countries on intra-Community routes.
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29. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see Case 244/80 Foglia [1981] ECR 3045, paragraph 18; Joined Cases C‑480/00 to C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00 Azienda Agricola Ettore Ribaldi and Others [2004] ECR I‑2943, paragraph 72; and García Blanco , paragraph 28).
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28. Accordingly, it is the acquisition of goods 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, merely determines the extent of the initial deduction to which the taxable person is entitled under Article 168 of Directive 2006/112 and the extent of any adjustments in the course of the following periods, adjustments which must be made under the conditions laid down in Article 184 et seq. of that directive (see Lennartz , paragraph 15; Ghent Coal Terminal , paragraph 18; Case C‑396/98 Schloßstrasse [2000] ECR I‑4279, paragraph 37; Breitsohl , paragraph 35; Centralan Property , paragraph 54; Case C‑118/11 Eon Aset Menidjmunt [2012] ECR, paragraph 57; and Case C‑334/10 X [2012] ECR, paragraph 17).
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37 It is important to note that it is the acquisition of the 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 are intended to be put, merely determines 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 made under the conditions laid down in Article 20 of that directive (Case C-97/90 Lennartz [1991] ECR I-3795, paragraph 15).
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68. Having regard to all the foregoing considerations, the answer to be given to the first question must be that on a proper construction of Articles 1 and 4 of Regulation No 3950/92 and Articles 3 and 4 of Regulation No 536/93, it is not contrary to those provisions for a Member State, after checks have been carried out, to correct the individual reference quantities allocated to each producer and, after the unused reference quantities have been reallocated, to recalculate in consequence the additional levies payable, after the final date for payment of those levies for the milk marketing year concerned.
Concerning the second question
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71
As regards the inferences to be drawn from the finding that such a term is unfair, it should be pointed out that it follows from the wording of Article 6(1) of Directive 93/13 that national courts are merely required to exclude the application of an unfair contractual term in order that it may not produce binding effects with regard to the consumer, without being empowered to revise the content of that term. That contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (see, inter alia, judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 65; of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 57; and of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 28).
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28. In that context, it should be borne in mind that, as regards the inferences to be drawn from the finding of unfairness of a contract provision between a consumer and a professional, it follows from the wording of Article 6(1) of Directive 93/13 that national courts are merely required to exclude the application of an unfair contractual term in order that it may not produce binding effects with regard to the consumer, without being empowered to revise the content of that term. That contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (judgments in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 65, and in Asbeek Brusse and de Man Garabito , C‑488/11, EU:C:2013:341, paragraph 57).
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53. Le fait que ladite autorisation préalable puisse être subordonnée à certaines conditions dont le respect peut être contrôlé postérieurement n’est pas de nature à remettre en cause cette constatation. En effet, ces conditions ne peuvent être formulées qu’au moment de la délivrance de ladite autorisation, c’est-à-dire à un moment où ladite menace pourrait ne pas encore avoir surgi. Or, il n’est pas certain que, à ce moment précis, toutes les éventuelles hypothèses de menaces réelles et suffisamment graves pour la sécurité de l’approvisionnement en énergie puissent être prises en compte dans le cadre desdites conditions.
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25 It must be borne in mind that, in accordance with settled case-law, the exemptions constitute independent concepts of Community law which must be placed in the general context of the common system of VAT introduced by the Sixth Directive (see, in particular, Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 18, Case 348/87 Stichting Uitvoering Financiële Acties [1989] ECR 1737, paragraph 11, and Case C-2/95 SDC [1997] ECR I-3017, paragraph 21).
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21 Furthermore, as the Court pointed out in its judgment in Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 18, and its judgment in Case 348/87 Stichting Uitvoering Financiële Acties, cited above (paragraph 11), it is evident from the 11th recital of the preamble to the Sixth Directive that the exemptions constitute independent concepts of Community law which must be placed in the general context of the common system of VAT introduced by the Directive.
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33 The questions referred therefore concern a situation in which the BMW mark has been used to inform the public that the advertiser carries out the repair and maintenance of BMW cars or that he has specialised, or is a specialist, in the sale or repair and maintenance of those cars.
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16. However, if questions have been improperly formulated or go beyond the scope of the powers conferred on it by Article 234 EC, the Court is free to extract from all the factors provided by the national court, and in particular from the statement of the grounds contained in the reference, the elements of Community law requiring an interpretation – or, as the case may be, an assessment of validity – having regard to the subject-matter of the dispute (see Case C-105/96 Codiesel [1997] ECR I‑3465, paragraph 13).
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13 However, in the event of questions having been improperly formulated or going beyond the scope of the powers conferred on it by Article 177, the Court is free to extract from all the factors provided by the national court, and in particular from the statement of the grounds contained in the reference, the elements of Community law requiring an interpretation - or, as the case may be, an assessment of validity - having regard to the subject-matter of the dispute (see Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraph 26).
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36. Secondly, as is apparent from that regulation, Valimar’s resale prices were not used to calculate SSM’s export prices.
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42. In that regard, even admitting that the objective outlined at paragraph 40 of this judgment may be regarded as an overriding reason in the public interest and not a reason of a purely economic nature (see, in that regard, Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 34 and the case‑law cited, as well as judgment of 16 February 2012 in Joined Cases C‑72/10 and C‑77/101 Costa and Cifone , paragraph 59), it should be noted that, according to settled case‑law a restriction of the fundamental freedoms enshrined in the Treaty may be justified only if the relevant measure is appropriate for ensuring the attainment of the objective in question and does not go beyond what is necessary to attain that objective ( Attanasio Group , paragraph 51 and the case‑law cited). Furthermore, 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, inter alia, Case C‑169/07 Hartlauer [2009] ECR I‑1721, paragraph 55, and Attanasio Group , paragraph 51).
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51. However, it should be borne in mind that, according to settled case-law, irrespective of the existence of a legitimate objective under EU law, a restriction on the fundamental freedoms enshrined in the Treaty may be justified only if the relevant measure is appropriate to ensuring the attainment of the objective in question and does not go beyond what is necessary to attain that objective (see, to that effect, Case C‑100/01 Oteiza Olazabal [2002] ECR I‑10981, paragraph 43; Case C‑527/06 Renneberg [2008] ECR I‑7735, paragraph 81; Joined Cases C‑155/08 and C‑157/08 X and Passenheim-van Schoot [2009] ECR I‑0000, paragraph 47; and Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑0000, paragraph 42). Furthermore, national legislation is appropriate to ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, in particular, Hartlauer , paragraph 55, and Presidente del Consiglio dei Ministri , paragraph 42).
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12 THE MANDATORY NATURE OF DIRECTIVES ENTAILS THE OBLIGATION FOR ALL MEMBER STATES TO COMPLY WITH THE TIME-LIMITS CONTAINED THEREIN IN ORDER THAT THE IMPLEMENTATION SHALL BE ACHIEVED UNIFORMLY WITHIN THE WHOLE COMMUNITY .
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26 First, the consistent case-law of the Court shows that a directive may not of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (see, in particular, Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 48; Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 6; Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 20). According to that case-law, however, when applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty.
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48 WITH REGARD TO THE ARGUMENT THAT A DIRECTIVE MAY NOT BE RELIED UPON AGAINST AN INDIVIDUAL , IT MUST BE EMPHASIZED THAT ACCORDING TO ARTICLE 189 OF THE EEC TREATY THE BINDING NATURE OF A DIRECTIVE , WHICH CONSTITUTES THE BASIS FOR THE POSSIBILITY OF RELYING ON THE DIRECTIVE BEFORE A NATIONAL COURT , EXISTS ONLY IN RELATION TO ' EACH MEMBER STATE TO WHICH IT IS ADDRESSED ' . IT FOLLOWS THAT A DIRECTIVE MAY NOT OF ITSELF IMPOSE OBLIGATIONS ON AN INDIVIDUAL AND THAT A PROVISION OF A DIRECTIVE MAY NOT BE RELIED UPON AS SUCH AGAINST SUCH A PERSON . IT MUST THEREFORE BE EXAMINED WHETHER , IN THIS CASE , THE RESPONDENT MUST BE REGARDED AS HAVING ACTED AS AN INDIVIDUAL .
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44. It must also be borne in mind that the principle of fiscal neutrality precludes, inter alia, economic operators carrying on the same activities from being treated differently as far as the levying of VAT is concerned ( Kügler , cited above, paragraph 30).
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39. Conformément à l’article 5 du règlement nº 469/2009, des CCP, tels que ceux visés au point 35 du présent arrêt, délivrés en lien avec ces produits confèrent, à l’expiration du brevet de base, les mêmes droits que ceux qui étaient conférés par ce brevet de base à l’égard desdits produits, dans les limites de la protection conférée par ledit brevet telles qu’énoncées à l’article 4 de ce règlement. Partant, si le titulaire de ce même brevet pouvait, pendant la période de validité de celui-ci, s’opposer, sur le fondement de son brevet, à toute utilisation ou à certaines utilisations de ses produits sous la forme d’un médicament consistant en un tel produit ou contenant celui-ci, les CCP délivrés à l’égard de ces mêmes produits lui conféreront les mêmes droits pour toutes les utilisations de ces produits, en tant que médicament, qui ont été autorisées avant l’expiration desdits certificats (voir arrêts précités Medeva, point 39, et Georgetown University e.a., point 32, ainsi que ordonnances University of Queensland et CSL, précitée, point 34, et du 25 novembre 2011, Daiichi Sankyo, C‑6/11, Rec. p. I‑12255, point 29).
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39. In accordance with Article 5 of Regulation No 469/2009, a SPC thus granted in connection with such a product confers, upon the expiry of the patent, the same rights as were conferred by the basic patent in relation to the product, within the limits of the protection conferred by the basic patent, as provided for in Article 4 of the regulation. Accordingly, if, during the period in which the patent was valid, the patent holder could oppose, on the basis of his patent, all use or certain uses of his product in the form of a medicinal product consisting of such a product or containing it, the SPC granted in relation to that product would confer on the holder the same rights for all uses of the product, as a medicinal product, which were authorised before the expiry of the certificate.
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32. In order to determine whether the services supplied constitute independent services or a single service it is necessary to examine the characteristic elements of the transaction concerned (judgment in BGŻ Leasing , C‑224/11, EU:C:2013:15, paragraph 32).
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38. Furthermore, the agreement of the national legal systems with respect to the effects of the transfer of the bill of lading to a third party is not found in relation to contracts transferring ownership, as regards to which it appears that the relationships between manufacturer and sub-buyer are perceived differently in the Member States (see, to that effect, Handte , paragraph 20).
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20 Apart from the fact that the manufacturer has no contractual relationship with the sub-buyer and undertakes no contractual obligation towards that buyer, whose identity and domicile may, quite reasonably, be unknown to him, it appears that in the great majority of Contracting States the liability of a manufacturer towards a sub-buyer for defects in the goods sold is not regarded as being of a contractual nature.
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26. Accordingly, the enacting terms of the contested decision were worded as follows:
‘Article 1
The state aid in the form of a preferential land price and a preferential rate of water treatment levy granted by France to Scott and amounting, in the case of the land price, to FRF 39.58 million (EUR 6.03 million) or, at present value, FRF 80.77 million (EUR 12.3 million) and, in the case of the second advantage, to a value which the French authorities will have to calculate using a method worked out by the Commission is incompatible with the common market.
Article 2
1. France shall take all necessary measures to recover from the beneficiary the aid referred to in Article 1 and already made available to it unlawfully.
2. Recovery shall be effected without delay and in accordance with the procedures of national law, provided that they allow the immediate and effective execution of this Decision. The aid to be recovered shall include interest from the date on which it was made available to the beneficiary until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.
Article 3
France shall inform the Commission, within two months of notification of this decision, of the measures taken to comply with it.
Article 4
This Decision is addressed to the French Republic.’
The procedure before the General Court and the judgment under appeal
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19. As a preliminary point, it is to be noted that, according to settled case-law, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (Case C‑35/98 Verkooijen [2000] ECR I-4071, paragraph 32; Case C-319/02 Manninen [2004] ECR I-7477, paragraph 19; and Case C-292/04 Meilicke and Others [2007] ECR I-1835, paragraph 19).
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19. It is settled case-law that, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651, paragraph 19, and Manninen , paragraph 19).
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13 IT FOLLOWS THAT THE DESCRIPTIONS OF GOODS ON WHICH CUSTOMS DUTIES HAVE BEEN SUSPENDED MUST BE INTERPRETED ACCORDING TO OBJECTIVE CRITERIA DERIVED FROM THEIR WORDING AND THAT THEY MAY NOT BE APPLIED CONTRARY TO THEIR WORDING TO OTHER GOODS EVEN IF THEIR PROPERTIES AND APPLICATION ARE NO DIFFERENT FROM THOSE COVERED BY THE SUSPENSION . IN PARTICULAR , A LATER AMENDMENT OF THE DESCRIPTION OF A PRODUCT ON WHICH DUTIES HAVE BEEN SUSPENDED CANNOT RETROACTIVELY AFFECT THE INTERPRETATION OF THE DESCRIPTION PREVIOUSLY APPLIED FOR THAT PURPOSE .
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63 As regards the Commission's obligation to state reasons, it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraphs 15 and 16, and Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86).
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15 It is true that the Court has consistently held that the statement of grounds required by Article 190 of the EEC Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and the Court to exercise its supervisory jurisdiction ( see paragraph 19 of the judgment of 30 September 1982 in Case 108/81 Amylum v Council (( 1982 )) ECR 3107; paragraph 37 of the judgment of 8 November 1983 in Joined Cases 96 to 102, 104, 105, 108 and 110/82 IAZ and Others v Commission (( 1983 )) ECR 3369; and paragraph 38 of the judgment of 25 October 1984 in Case 185/83 University of Groningen v Inspecteur der Invoerrechten en Accijnzen, Groningen (( 1984 )) ECR 3623 ). It is also accepted that, although the reasons on which a decision following a well-established line of decisions is based may be given in a summary manner, for example by a reference to those decisions, the Community authority must give an explicit account of its reasoning if the decision goes appreciably further than the previous decisions ( see paragraph 31 of the judgment of 26 November 1975 in Case 73/74 Groupement des fabricants de papiers peints and Others v Commission (( 1975 )) ECR 1491 ).
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49. Next, the entry of the mark in a public register has the aim of making it accessible to the competent authorities and the public, particularly to economic operators.
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78. In that regard, according to settled case-law, under the principle of sincere cooperation laid down in Article 4 TEU, it is for the Member States to ensure judicial protection of an individual’s rights under EU law (see, to that effect, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph 5; Case 45/76 Comet [1976] ECR 2043, paragraph 12; Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 19; and Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 38).
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12 THUS , IN APPLICATION OF THE PRINCIPLE OF COOPERATION LAID DOWN IN ARTICLE 5 OF THE TREATY , THE NATIONAL COURTS ARE ENTRUSTED WITH ENSURING THE LEGAL PROTECTION CONFERRED ON INDIVIDUALS BY THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW .
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45. However, an obligation imposed on a service provider established in another Member State, at the same time as the requirement referred to in paragraph 41 above, to report beforehand to the local authorities on the presence of one or more deployed workers, the anticipated duration of their presence and the service or services justifying the deployment would be a more proportionate means than the check in advance of positing because it is less restrictive but just as effective. It would enable those authorities to monitor compliance with German social welfare legislation during the deployment while at the same time taking account of the obligations by which that undertaking is already bound under the social welfare legislation applicable in the Member State of origin ( Commission v Luxembourg , paragraph 31).
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20. In this respect, it must be borne in mind, first, that Community competition law refers to the activities of undertakings (Case 13/77 GB‑Inno‑BM [1977] ECR 2115, paragraph 31, and Case C‑280/06 ETI and Others [2007] ECR I‑0000, paragraph 38 and the case‑law cited). More specifically, Article 82 EC applies to undertakings holding a dominant position.
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38. It is apparent from the case-law that Community competition law refers to the activities of undertakings (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 59) and that the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, in particular, Joined Cases C‑189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 112; Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I-289, paragraph 107; and Case C-205/03 P FENIN v Commission [2006] ECR I-6295, paragraph 25).
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56. It cannot be inferred from Article 6(1) of Directive 2000/78 that the lack of precision in the national legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision.
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50
The link of integration arises, in particular, from the fact that migrant workers contribute to the financing of the social policies of the host Member State through the taxes and social contributions which they pay in that State by virtue of their employment there. They must, therefore, be able to benefit from them under the same conditions as national workers (see, to that effect, judgments of 14 June 2012, Commission v Netherlands, C‑542/09, EU:C:2012:346, paragraph 66, and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 63).
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66. The link of integration arises from, inter alia, the fact that, through the taxes which he pays in the host Member State by virtue of his employment, the migrant worker also contributes to the financing of the social policies of that State and should profit from them under the same conditions as national workers.
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43. If they have not, an obligation to register such as that at issue in the cases in the main proceedings is contrary to the principle of freedom of movement for persons and cannot be justified by the arguments put forward in these cases, especially by the Belgian Government.
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15 In that regard, it must be borne in mind that recourse to Article 100a as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws provided that the emergence of such obstacles is likely and the measure in question is designed to prevent them (Case C-350/92 Spain v Council [1995] ECR I-1985, paragraph 35, and Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419, paragraph 86).
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86 It is true, as the Court observed in paragraph 35 of its judgment in Spain v Council, cited above, that recourse to Article 100a as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws. However, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them.
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24. La Cour a ainsi jugé que l’article 2, paragraphe 6, de la directive 89/665 ne saurait avoir d’incidence sur un recours exercé au titre de l’article 226 CE ou de l’article 228 CE (voir arrêt du 18 juillet 2007, Commission/Allemagne, C-503/04, Rec. p. I‑6153, point 34) et que cette conclusion vaut également pour la directive 89/665 envisagée dans son ensemble (arrêt du 15 octobre 2009, Commission/Allemagne, C‑275/08, point 33).
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33. Second, it should be noted that the Court has held that, in applying the principle of neutrality of VAT, a taxable person whose sole object is to prepare the economic activity of another taxable person and who has not effected any taxable transaction may exercise a right to deduct in relation to taxable transactions carried out by the other taxable person (see, to that effect, Case C‑137/02 Faxworld [2004] ECR I‑5547, paragraphs 41 and 42). That interpretation of the Sixth Directive concerned a situation where the VAT which the first taxable person wished to deduct related to supplies acquired by it for the purpose of carrying out taxable transactions planned by the second taxable person.
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41. However, in contrast to the facts of the case giving rise to the judgment in Abbey National , the taxable person in the case before the national court, namely Faxworld GbR, as a Vorgründungsgesellschaft, did not even intend to effect itself taxable operations, its sole object being to prepare the activities of the Aktiengesellschaft (limited company). None the less, the VAT which Faxworld GbR wishes to deduct relates to supplies acquired for the purpose of effecting taxable transactions, even though those transactions were only the planned transactions of Faxworld AG.
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29 IT SHOULD BE POINTED OUT THAT THE PREFERENTIAL TARIFF WAS APPLICABLE ONLY TO UNDERTAKINGS ENGAGED IN HOTHOUSE HORTICULTURE . IN THAT SECTOR, HEATING COSTS ACCOUNT FOR A LARGE PART OF PRODUCTION COSTS . IF, IN SUCH CIRCUMSTANCES, THE TARIFF APPLIED TO THOSE UNDERTAKINGS DISPLAYS A DOWNWARD TREND WHICH IS NOT REFLECTED BY THE TARIFFS APPLICABLE TO UNDERTAKINGS IN OTHER SECTORS, THAT IS PRIMA FACIE EVIDENCE FOR THE CONCLUSION THAT THE PREFERENTIAL TARIFF CONSTITUTES AID .
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24. In that regard, it is sufficient to point out that, in accordance with settled case-law, the Court has jurisdiction to rule on questions referred by the national court even where the facts of the proceedings before that court fall outside the scope of EU law, provided that, in regulating situations not covered by EU law, the domestic legislation has adopted the same solutions as those adopted under EU law. The Court has consistently held that the legal order of the European Union clearly has an interest in ensuring that, in order to forestall future divergences of interpretation, every provision of EU law is interpreted uniformly, irrespective of the circumstances in which that provision is to apply (see, to that effect, inter alia, Case C‑130/95 Giloy [1997] ECR I‑4291, paragraphs 19 to 28; Case C‑267/99 Adam [2001] ECR I‑7467, paragraphs 23 to 29; Case C‑43/00 Andersen og Jensen [2002] ECR I‑379, paragraphs 15 to 19; Case C‑3/04 Poseidon Chartering [2006] ECR I‑2505, paragraphs 14 to 19; and Case C-205/09 Eredics and Sápi [2010] ECR I-0000, paragraph 33).
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26 However, those circumstances do not of themselves lead to the conclusion that the interpretation requested by the national court bears no relation to the main proceedings and that, therefore, the Court of Justice has no jurisdiction to answer the questions referred.
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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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44. According to the case-law of the Court, failure to observe the obligation to notify constitutes a procedural defect in the adoption of the technical regulations concerned, and renders those technical regulations inapplicable and therefore unenforceable against individuals (see, in particular, CIA Security International , paragraph 54, and Lemmens , paragraph 33). Individuals may rely on that inapplicability before the national court which must decline to apply a national technical regulation which has not been notified in accordance with Directive 98/34 (see, in particular, CIA Security International , paragraph 55, and Sapod Audic , paragraph 50).
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33 In paragraphs 48 and 54 of that judgment, the Court pointed out that the obligation to notify is essential for achieving such Community control and went on to state that the effectiveness of such control will be that much greater if the Directive is interpreted as meaning that breach of the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable, and thus unenforceable against individuals.
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21. In such a situation, those items are not distributed in any way with the aim of penetrating the market for goods in the same class. In those circumstances, affixing the mark to those items does not contribute to creating an outlet for those items or to distinguishing, in the interest of the customer, those items from the goods of other undertakings.
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47. It is settled case-law that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued ( Jippes and Others , cited above, paragraph 81, and Lennox , cited above, paragraph 76).
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81 As to review of proportionality, the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see Fedesa and Others, cited above, paragraph 13, and Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR I-4863, paragraph 41).
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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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47
It follows that the system for sharing jurisdiction established by Regulation No 2201/2003 concerning the dissolution of matrimonial ties is not intended to preclude the courts of several States having jurisdiction. Rather, the coexistence of several courts having jurisdiction is expressly provided for, without any hierarchy being established between them (judgment of 16 July 2009, Hadadi, C‑168/08, EU:C:2009:474, paragraph 49).
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49. It follows that the system of jurisdiction established by Regulation No 2201/2003 concerning the dissolution of matrimonial ties is not intended to preclude the courts of several States from having jurisdiction. Rather, the coexistence of several courts having jurisdiction is expressly provided for, without any hierarchy being established between them.
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100. It should be noted that, according to settled case-law, it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 107(1) TFEU (see, to that effect, Case C‑387/92 Banco Exterior de España [1994] ECR I-877, paragraph 14; Case C‑6/97 Italy v Commission [1999] ECR I-2981, paragraph 16; and Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 36).
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57. Furthermore, the measures which the Member States may adopt under Article 273 of Directive 2006/112, in order to ensure the correct levying and collection of the tax and to prevent evasion, must not go further than is necessary to attain such objectives. Therefore, they cannot be used in such a way that they would have the effect of systematically undermining the right to deduct VAT and, consequently, the neutrality of VAT, which is a fundam ental principle of the common system of VAT (see, to that effect, inter alia, Gabalfrisa and Others , paragraph 52; Halifax and Others , paragraph 92; Case C-385/09 Nidera Handelscompagnie [2010] ECR I-10385, paragraph 49; and Dankowski , paragraph 37).
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52 Furthermore, it must be noted that the measures which the Member States may adopt under Article 22(8) of the Sixth Directive in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than is necessary to attain such objectives. They may not therefore be used in such a way that they would have the effect of systematically undermining the right to deduct VAT, which is a fundamental principle of the common system of VAT established by the relevant Community legislation (see, to that effect, Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Molenheide and Others v Belgian State [1997] ECR I-7281, paragraph 47).
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26 It follows that the Commission's first complaint must be upheld.
The obligation to establish a guarantee with a credit institution having its registered office or a branch office on Italian territory
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27 Before replying to the question referred, it should be noted that the Court has held that the Regeringsrätten, when seised with an appeal against a ruling of the Skatterättsnämnden, is carrying out a judicial function. Second, although the dispute in the main proceedings concerns the possibility of carrying out in the future a transaction which has not yet been undertaken, it is a genuine dispute and the question of Community law raised by the referring court is in no way hypothetical (see Case C-200/98 X and Y [1999] ECR I-8261, paragraphs 16 to 22).
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19 Consequently, since the questions submitted by the national court relate to the interpretation of a provision of Community law, the Court is in principle bound to give a ruling (see Case C-83/91 Meilicke [1992] ECR I-4871, paragraph 24, and Aprile, cited above, paragraph 17).
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32. Moreover, making the granting of a collective work permit subject to the requirement that an employment contract of indefinite duration must have been in existence between the workers and their undertaking of origin for at least six months before their deployment to Luxembourg goes beyond what is required for the objective of social welfare protection as a necessary condition for providing services through the deployment of workers who are nationals of non-member countries.
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36. Moreover, the Court has found that, as can be seen from the first subparagraph of Article 1(2) of the VAT directive, one of the essential characteristics of VAT is that it is proportional to the price of the goods or services concerned (see, to that effect, Case C‑200/90 Dansk Denkavit and Poulsen Trading [1992] ECR I‑2217, paragraph 11; Pelzl and Others , paragraph 25; and Joined Cases C‑283/06 and C‑312/06 KÖGÁZ and Others [2007] ECR I‑8463, paragraph 40).
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25 Third, since the charges to promote tourism are calculated, subject to certain exemptions, on the basis of an overall annual turnover, it is not possible to determine the precise amount of the charge passed on to the customer when each sale is effected or each service supplied, and the condition that this amount should be proportional to the price charged by the taxable person is thus not satisfied either.
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57. That finding cannot be called into question by the fact that the Court of Justice, in paragraph 144 of the judgment in ThyssenKrupp Nirosta v Commission (EU:C:2011:191), held that the possibility referred to in paragraph 53 of the present judgment also applies in a situation where the entity that has committed the infringement has ceased to exist, either in law or economically, since a penalty imposed on an undertaking which is no longer economically active is likely to have no deterrent effect; it does not follow from that judgment that an infringement may be imputed to an entity which did not commit the infringement only in cases where the application of a penalty to the company which did commit the infringement would not achieve its objective of deterrence (see judgment in Versalis v Commission , EU:C:2013:386, paragraph 55).
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100. The Guidelines, which, the Court has held, form rules of practice from which the administration may not depart in an individual case without giving reasons compatible with the principle of equal treatment (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission , paragraph 91), merely describe the method used by the Commission to examine infringements and the criteria that the Commission requires to be taken into account in setting the amount of a fine.
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91. It should be noted in that regard that, whilst rules of conduct designed to produce external effects, as is the case of the Guidelines, which are aimed at traders, may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (see, to that effect, Dansk Rørindustri and Others v Commission , paragraphs 209 and 210).
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13 Legislation of the kind at issue in the main proceedings affords no additional social protection to the persons concerned. Therefore, the impediment to the pursuit of occupational activities in more than one Member State may not in any event be justified on that basis (Stanton, paragraph 15).
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42. The option of generally exempting certain activities, in accordance with the rules in force, from the need for an assessment of the implications for the site concerned is not such as to guarantee that those activities do not adversely affect the integrity of the protected site (see, to that effect, Commission v Germany , paragraphs 43 and 44, and Case C‑241/08 Commission v France [2010] ECR I-0000, paragraph 31).
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43. As regards, in particular, installations not subject to authorisation under the BImSchG, the fact that that text requires verification, that serious environmental damage which may be prevented by current technology is in fact prevented, and that damage which cannot be prevented by current technology is reduced to the minimum, cannot be sufficient to ensure compliance with the duty laid down in Article 6(3) of the Directive. The duty of verification laid down by the BImSchG is not, in any event, capable of ensuring that a project relating to such an installation does not adversely affect the integrity of the protected site. In particular, the duty to verify whether serious environmental damage, which cannot be prevented by current technology, is reduced to the minimum, does not ensure that such a project will not give rise to such damage.
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42. By contrast, the situation is completely different where the Commission seeks to obtain answers from an undertaking which is being investigated by which that undertaking would be led to admit an infringement which it is incumbent upon the Commission to prove (see Orkem v Commission , paragraph 35).
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36. In addition, it must be pointed out that the Court has held that Turkish nationals who satisfy the conditions laid down in one of the provisions of Decision No 1/80 accordingly enjoy the rights conferred on them by that decision (see, inter alia, Case C‑337/07 Altun [2008] ECR I‑10323, paragraphs 28 and 29, and Bozkurt , paragraph 39) and that Member States are not entitled to provide for rules which differ from those resulting from Decision No 1/80 or which impose conditions other than those provided for in that decision (see Pehlivan , paragraph 56).
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29. It must be recalled that Decision No 1/80 aims to promote the gradual integration in the host Member State of Turkish nationals who satisfy the conditions laid down in one of the provisions of that decision and thus enjoy the rights conferred on them by the decision ( Derin , paragraph 53).
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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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30. Those conditions are exhaustive in nature (see, to that effect, Case 48/75 Royer [1976] ECR 497, paragraph 37; Case C-363/89 Roux [1991] ECR I-273, paragraphs 14 and 15; and Case C-376/89 Giagounidis [1991] ECR I-1069, paragraph 21).
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15 Moreover, under Article 6 of Directive 73/148 the Member States may not require, for the issue of a residence permit to a self-employed person, anything other than the production of one of the abovementioned identity documents, and proof that the person concerned "comes within one of the classes of person referred to in Articles 1 and 4".
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68. Last, the practice followed by the Commission in its decisions or its guidelines, even if that practice were to support the approach advocated by Dunamenti Erőmű in its second ground of appeal, cannot, in any event, bind the Court in its interpretation of the EU rules relating to State aid. Any argument based on that practice must, therefore, be rejected.
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14. A national measure which permits derogating from Article 7(4) of the Directive by virtue of Article 9(1), such as the measure cited in paragraph 5 of this judgment, does not comply with the latter provision if it fails to refer to the fact that such a derogation can be granted only where there is no other satisfactory solution (see, to that effect, Commission v Italy , cited above, paragraph 39).
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39 HOWEVER, IT MUST BE OBSERVED FIRST OF ALL THAT THE PROVISION CONCERNED MAKES NO REFERENCE TO ARTICLE 9 ( 1 ), WHICH PROVIDES THAT A DEROGATION FROM ARTICLES 7 AND 8 OF THE DIRECTIVE MAY BE GRANTED ONLY IF THERE IS NO OTHER SATISFACTORY SOLUTION . SECONDLY, ARTICLE 18 OF THE LAW, WHICH AUTHORIZES THE REGIONS TO PERMIT THE USE OF MEANS AND ARRANGEMENTS FOR CAPTURING BIRDS, TO FIX THE PERIODS IN WHICH CAPTURING IS PERMITTED AND TO DRAW UP THE LIST OF BIRDS WHICH MAY BE HUNTED, DOES NOT, CONTRARY TO THE REQUIREMENTS OF ARTICLE 9 ( 2 ) OF THE DIRECTIVE, SPECIFY THE MEANS, ARRANGEMENTS OR METHODS AUTHORIZED FOR THE CAPTURE OR KILLING OF BIRDS, THE CIRCUMSTANCES OF TIME AND PLACE UNDER WHICH THE DEROGATIONS MAY BE GRANTED OR THE SPECIES COVERED BY THE DEROGATIONS . SUCH CRITERIA AND CONDITIONS ARE NECESSARY TO ENSURE THAT THE DEROGATION IS APPLIED IN A STRICTLY CONTROLLED AND SELECTIVE MANNER . SINCE ARTICLE 18 ( 2 ) OF THE LAW DOES NOT ITSELF ESTABLISH THE CRITERIA AND CONDITIONS PROVIDED FOR IN ARTICLE 9 ( 2 ) OF THE DIRECTIVE OR REQUIRE THE REGIONS TO TAKE ACCOUNT OF THOSE CRITERIA AND CONDITIONS, IT INTRODUCES AN ELEMENT OF UNCERTAINTY AS REGARDS THE OBLIGATIONS WHICH THE REGIONS MUST OBSERVE WHEN ADOPTING THEIR REGULATIONS . THEREFORE, THERE IS NO GUARANTEE THAT THE CAPTURE OF CERTAIN SPECIES OF BIRDS WILL BE LIMITED TO THE STRICT MINIMUM, THAT THE PERIOD OF CAPTURE WILL NOT COINCIDE UNNECESSARILY WITH PERIODS IN WHICH THE DIRECTIVE AIMS TO PROVIDE PARTICULAR PROTECTION OR THAT THE MEANS, ARRANGEMENTS OR METHODS FOR CAPTURE ARE NOT LARGE-SCALE, NON-SELECTIVE OR CAPABLE OF CAUSING THE LOCAL DISAPPEARANCE OF A SPECIES . IT FOLLOWS THAT THE ESSENTIAL ELEMENTS OF ARTICLE 9 OF THE DIRECTIVE HAVE NOT BEEN TRANSPOSED COMPLETELY, CLEARLY AND UNEQUIVOCALLY INTO THE ITALIAN RULES .
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28. Where a number of offences or irregularities have occurred in various Member States, the Member State having jurisdiction to recover the customs duties is the State in which the first offence or irregularity was committed (see, by analogy, Liberexim , paragraph 57).
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21 The letting of immovable property for the purposes of Article 13B(b) of the Sixth Directive essentially involves the landlord of property assigning to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude other persons from it (see, to that effect, Case C-358/97 Commission v Ireland [2000] ECR I-6301, paragraphs 52 to 57, Case C-359/97 Commission v United Kingdom [2000] ECR I-6355, paragraphs 64 to 69; and Case C-326/99 Goed Wonen [2001] ECR I-0000, paragraph 55).
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65 In that regard, it must be observed that the wording of Article 13B(b) of the Sixth Directive does not shed any light on the scope of the terms leasing or letting of immovable property.
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9 However, it should be noted that workers who have carried on an occupation in one Member State and who are subsequently employed, or seek employment, in another Member State will normally have concluded their pension and life assurance contracts or invalidity and sickness insurance contracts with insurers established in the first State. It follows that there is a risk that the provisions in question may operate to the particular detriment of those workers who are, as a general rule, nationals of other Member States.
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68 Where, as in the main proceedings, the Turkish national fulfils the conditions laid down by a provision of Decision No 1/80 and accordingly is already duly integrated in a Member State, the latter no longer has the power to restrict application of those rights, as otherwise that decision would be rendered redundant (see, in particular, Birden, paragraph 37, Nazli, paragraph 30, and Case C-65/98 Eyüp [2000] ECR I-4747, paragraph 41).
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37 Furthermore, the Court has held that, although, as the law stands at present, Decision No 1/80 does not encroach upon the competence of the Member States to refuse Turkish nationals the right of entry into their territories and to take up first employment there and does not preclude those Member States, in principle, from regulating the conditions under which Turkish nationals work for up to one year as provided for in the first indent of Article 6(1) of that decision, none the less that provision cannot be construed as permitting a Member State to modify unilaterally the scope of the system of gradual integration of Turkish workers in the host State's labour force, by denying a worker who has been permitted to enter its territory and who has lawfully pursued a genuine and effective economic activity for a continuous period of more than one year with the same employer the rights which the three indents of that provision confer on him progressively according to the duration of his employment. The effect of such an interpretation would be to render Decision No 1/80 meaningless and deprive it of any practical effect (see, to that effect, the judgment in Günaydin, paragraphs 36 to 38).
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7 Whilst acknowledging the great biological importance of the Seine estuary, the French Government replied, on 18 November 1993, that it regarded the existing protection regime as being adequate to guarantee compliance with the commitment it had entered into, on creating the SPA, to preserve bird habitats. It denied that the deposit of titanogypsum could constitute an infringement of the Wild Birds Directive, since it was located outside the SPA.
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62. Under Article 17(6) of the Sixth Directive, and in particular the second subparagraph, the Member States are authorised to retain their existing legislation as at the date of entry into force of the Sixth Directive in regard to exclusion from the right of deduction until such time as the Council has adopted the provisions envisaged by that article (see Case C-345/99 Commission v France [2001] ECR I-4493, paragraph 19).
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19 The principle of the right to deduct VAT is none the less subject to the derogation in Article 17(6) of the Sixth Directive and, in particular, its second subparagraph. The Member States are thereby authorised to retain their existing legislation in regard to exclusion from the right of deduction until such time as the Council has adopted the provisions envisaged by that article (Case C-305/97 Royscot and Others [1999] ECR I-6671, paragraph 29).
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18 It is apparent from the order for reference that the introduction of strict criminal liability corresponds to the system generally applicable in Denmark for the protection of the working environment .
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29. On this point, it must be recalled that, according to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Case C‑72/03 Carbonati Apuani [2004] ECR I‑0000, paragraph 10).
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10. Here it has to be pointed out that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the question it is asking or, at the very least, explain the factual circumstances on which that question is based (see, inter alia, the judgment in Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6; the orders in Case C-157/92 Banchero [1993] ECR I-1085, paragraph 4; Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 5, and Case C-9/98 Agostini [1998] ECR I-4261, paragraph 4).
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26 AS REGARDS THE DOCUMENTS MENTIONED ONLY IN THE DECISION ( LETTER OF 29 JUNE 1976 FROM TFR ' S MUNSTER SALES OFFICE ; ATF MEMORANDUM OF 7 JULY 1977 ; ATF MEMORANDUM OF 20 OCTOBER 1978 ), THE COMMISSION CONTENDS THAT THESE WERE DOCUMENTS WITH WHICH THE APPLICANT WAS ALREADY FAMILIAR AS THEY CAME FROM ITS OWN OFFICES AND THAT THEY WERE USED ONLY TO CONFIRM OBJECTIONS ALREADY RAISED .
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74. As regards judicial review of Commission decisions imposing a fine for infringement of the competition rules, the review of legality is supplemented by the unlimited jurisdiction which Article 31 of Regulation No 1/2003 confers on the Courts of the European Union. Under that jurisdiction, the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, may substitute their own appraisal for the Commission’s and, consequently, cancel, reduce or increase the fine or penalty payment imposed (see, inter alia, judgment in KME Germany and Others v Commission , C‑389/10 P, EU:C:2011:816, paragraph 130 and the case-law cited).
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130. The review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union were afforded by Article 17 of Regulation No 17 and which is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 692).
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63. It follows that the transactions covered by that exemption are those which are specific to the business of undertakings for collective investment.
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43
In this connection, it should be noted first of all that Article 291(2) TFEU is not the only provision of EU law that confers an implementing power on the Council. Other provisions of primary law may confer such a power on it directly (see, to that effect, judgments of 26 November 2014, Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 50, and of 7 September 2016, Germany v Parliament and Council, C‑113/14, EU:C:2016:635, paragraphs 55 and 56). In addition, acts of secondary legislation may establish implementing powers outside the regime laid down in Article 291 TFEU (see, to that effect, judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraphs 78 to 86 and 98).
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50. The adoption of the provisions referred to in Article 43(2) TFEU necessarily presupposes an assessment of whether they are ‘necessary’ for the pursuit of the objectives of the common policies governed by the FEU Treaty, with the result that it entails a policy decision that must be reserved to the EU legislature. By contrast, the adoption of measures on the fixing and allocation of fishing opportunities, in accordance with Article 43(3) TFEU, does not require such an assessment since such measures are of a primarily technical nature and are intended to be taken in order to implement provisions adopted on the basis of Article 43(2).
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33. In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render in practice impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Case C‑526/04 Laboratoires Boiron [2006] ECR I‑7529, paragraph 51, and Case C-478/07 Budějovický Budvar [2009] ECR I-0000, paragraph 88 and the case-law cited).
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28
Secondly, the Court has held that, in order to be capable of being covered by the derogation provided for in Article 64(1) TFEU, the national measure must relate to capital movements that have a sufficiently close link with the provision of financial services, which requires that there be a causal link between the movement of capital and the provision of financial services (see, to that effect, judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraphs 43 and 44).
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43. Accordingly, in order to be capable of being covered by that derogation, the national measure must relate to capital movements that have a sufficiently close link with the provision of financial services.
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64. It should be recalled, at the outset, that the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (Case C‑535/06 P Moser Baer India v Council [2009] ECR I‑7051, paragraph 32 and the case‑law cited).
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110. Since the question of interpretation raised cannot be resolved by the wording of Clause 4 of the framework agreement, it is necessary, in accordance with settled case-law, to take into consideration the context and the objectives pursued by the rules of which that clause is part (see, in particular, Case 292/82 Merck [1983] ECR 3781, paragraph 12; Case 337/82 St. Nikolaus Brennerei und Likörfabrik [1984] ECR 1051, paragraph 10; Case C‑223/98 Adidas [1999] ECR I‑7081, paragraph 23; and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 21).
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10 IN VIEW OF THE PROBLEMS RAISED BY THE INTERPRETATION OF ARTICLE 46 OF THE TREATY , IT IS NECESSARY , IN ORDER TO DETERMINE THE SCOPE OF THAT PROVISION , TO CONSIDER ITS WORDING , ITS CONTEXT AND ITS AIMS .
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36. The different treatment afforded to those workers under the Spanish legislation, in so far as claims relating to compensation for unfair dismissal are payable by Fogasa only if they have been determined by a judgment or administrative decision, can thus be accepted only if it is objectively justified (see, to that effect, Rodríguez Caballero , paragraph 34).
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32. In that regard, it must be borne in mind that, even when there is case-law of the Court resolving the point of law at issue, national courts and tribunals remain entirely at liberty to bring a matter before the Court if they consider it appropriate to do so (see the judgment in Cilfit and Others , 283/81, EU:C:1982:335, paragraphs 13 to 15), and the fact that the provisions whose interpretation is sought have already been interpreted by the Court does not deprive the Court of jurisdiction to give a further ruling (see, to that effect, the judgment in Boxus and Others , C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 32).
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32. However, it follows from settled case-law that national courts and tribunals remain, in any event, entirely at liberty to bring a matter before the Court of Justice if they consider it appropriate to do so (see, in particular, Cilfit and Others , paragraph 15) and the fact that the provisions whose interpretation is sought have already been interpreted by the Court or can be regarded as leaving no scope for any reasonable doubt does not deprive the Court of jurisdiction to give a ruling (see, to that effect, in particular, Case C‑260/07 Pedro IV Servicios [2009] ECR I‑2437, paragraph 31).
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62. As the appellants in the main proceedings have stated, the Belgian legislation deems, in principle, both the heirs of resident persons and the heirs of persons who were non-resident at the time of death to be taxable persons for the purposes of collecting inheritance and/or transfer duties on immovable properties situated in Belgium. It is only in respect of the deduction of debts from the inheritance of non-residents that non-residents and residents are treated differently.
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41. In particular, such an undertaking may demonstrate, for that purpose, either that its conduct is objectively necessary (see, to that effect, Case 311/84 CBEM [1985] ECR 3261, paragraph 27), or that the exclusionary effect produced may be counterbalanced, outweighed even, by advantages in terms of efficiency that also benefit consumers (Case C‑95/04 P British Airways v Commission [2007] ECR I‑2331, paragraph 86, and TeliaSonera Sverige , paragraph 76).
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27 IT MUST THEREFORE BE HELD IN ANSWER TO THE SECOND QUESTION THAT AN ABUSE WITHIN THE MEANING OF ARTICLE 86 IS COMMITTED WHERE , WITHOUT ANY OBJECTIVE NECESSITY , AN UNDERTAKING HOLDING A DOMINANT POSITION ON A PARTICULAR MARKET RESERVES TO ITSELF OR TO AN UNDERTAKING BELONGING TO THE SAME GROUP AN ANCILLARY ACTIVITY WHICH MIGHT BE CARRIED OUT BY ANOTHER UNDERTAKING AS PART OF ITS ACTIVITIES ON A NEIGHBOURING BUT SEPARATE MARKET , WITH THE POSSIBILITY OF ELIMINATING ALL COMPETITION FROM SUCH UNDERTAKING .
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62. Consequently, in the main proceedings, it is only if and in so far as, pursuant to the EU and FEU Treaties, the European Union has assumed the powers previously exercised by its Member States in the field, as set out in paragraphs 57 to 59 of the present judgment, to which that international convention applies that the convention’s provisions would have the effect of binding the European Union (see, to this effect, International Fruit Company and Others , paragraph 18; Case C‑379/92 Peralta [1994] ECR I‑3453, paragraph 16; and Case C‑301/08 Bogiatzi [2009] ECR I‑10185, paragraph 25).
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