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26. On the other hand, it follows from Article 51(1) EC, read in conjunction with Article 80(2) EC, that services falling within the sea transport sector, but not within the scope of Regulation No 3577/92 or other rules adopted on the basis of Article 80(2) EC, remain governed by the legislation of Member States, in compliance with Article 54 EC and other general provisions of the Treaty (see, to that effect Case 167/73 Commission v France [1974] ECR 359, paragraph 32).
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32 WHILST UNDER ARTICLE 84 ( 2 ), THEREFORE, SEA AND AIR TRANSPORT, SO LONG AS THE COUNCIL HAS NOT DECIDED OTHERWISE, IS EXCLUDED FROM THE RULES OF TITLE IV OF PART TWO OF THE TREATY RELATING TO THE COMMON TRANSPORT POLICY, IT REMAINS, ON THE SAME BASIS AS THE OTHER MODES OF TRANSPORT, SUBJECT TO THE GENERAL RULES OF THE TREATY .
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34 So, application of a national law which would give the trade-mark owner in the importing State the right to oppose the marketing of products which have been put into circulation in the exporting State by him or with his consent is precluded as contrary to Articles 30 and 36. This principle, known as the exhaustion of rights, applies where the owner of the trade mark in the importing State and the owner of the trade mark in the exporting State are the same or where, even if they are separate persons, they are economically linked. A number of situations are covered: products put into circulation by the same undertaking, by a licensee, by a parent company, by a subsidiary of the same group, or by an exclusive distributor.
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52. Observance of the principle of effectiveness requires that the organisation of the internal remedies must not, however, make it impossible or excessively difficult to exercise the rights individuals enjoy under EU law (judgment in Asociación de Consumidores Independientes de Castilla y León , EU:C:2013:800, paragraph 39).
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39. Certes, afin de respecter le principe d’effectivité, l’organisation des voies de recours internes et le nombre de degrés de juridiction ne doivent pas rendre impossible ou excessivement difficile l’exercice des droits que les justiciables tirent du droit de l’Union.
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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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43
In that respect, it has already been held that the provisions of the NCRF, in particular Article 9(1) of the Framework Directive, Article 5(1) of the Authorisation Directive and Article 4(1) of the Competition Directive, preclude national measures which have the effect of freezing the structures of the national market and protecting the position of national operators already active on that market, by preventing or restricting the access of new operators to that market, unless those measures are justified by objectives of general interest and structured on the basis of objective, transparent, non-discriminatory and proportionate criteria (see, to that effect, judgment of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraphs 95 to 107).
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97. First, by limiting de facto the number of operators able to broadcast on the market in question, those measures are and/or were likely to hinder the provision of services in the area of television broadcasting.
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34. In the first place, with regard to the principle of legal certainty, as the Court has repeatedly held, it follows, in particular, that EU legislation must be certain and its application foreseeable by those subject to it, and that requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which they impose on them (judgment in Ireland v Commission , 325/85, EU:C:1987:546, paragraph 18).
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66 According to that case-law, those provisions, which provide for the prohibition of all discrimination based on nationality in the field of social security against Algerian and Moroccan nationals as compared with the nationals of the host Member State, are directly effective notwithstanding the fact that the Cooperation Council has not adopted measures implementing Article 40(1) of the EEC-Algeria Agreement or Article 42(1) of the EEC-Morocco Agreement relating to the implementation of the principles stated in Articles 39 and 41 respectively.
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19 The Court has consistently held (see Kziber, paragraphs 15 to 22, and Case C-58/93 Yousfi v Belgian State [1994] ECR I-1353, paragraph 16) that Article 41(1) of the Agreement, which lays down in clear, precise and unconditional terms a prohibition of discrimination, based on nationality, against workers of Moroccan nationality and the members of their families living with them in the field of social security, contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure in respect of any question other than the matters mentioned in paragraphs 2, 3 and 4 of that article. In those judgments, the Court added that the object of the Agreement, which is to promote overall cooperation between the contracting parties, in particular in the field of labour, confirms that the principle of non-discrimination enshrined in Article 41(1) is capable of governing the legal situation of individuals.
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Or, le droit de SACBO à un recours juridictionnel effectif en vue d’obtenir réparation du préjudice dont elle se prétend victime
est assuré par les possibilités d’introduire un recours en indemnité tel que prévu à l’article 268 TFUE, qui est une voie
de recours autonome et dont les conditions d’exercice sont définies en raison de son objet spécifique, et sont dès lors distinctes
de celles du recours en annulation (voir, en ce sens, arrêt Ludwigshafener Walzmühle Erling e.a./Conseil et Commission, 197/80
à 200/80, 243/80, 245/80 et 247/80, EU:C:1981:311, point 4).
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168
Thus, although the Court has accepted, in the context particular to betting and gaming, that there may be justification for a restriction such as the granting of a monopoly to a public body entrusted, inter alia, with the task of financing social actions or welfare, it is apparent from the Court’s decisions that that has been the case only with regard to a certain number of overriding reasons relating to the public interest, such as, for example, the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling as well as the general need to preserve public order, and in the light of certain moral, religious or cultural factors associated with betting and gaming (see to that effect, inter alia, judgments in Läärä and Others, C‑124/97, EU:C:1999:435, paragraphs 41 and 42; Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraphs 66, 67 and 72; and Stoß and Others, C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504, paragraphs 79 and 81 to 83).
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66. In that regard, it is apparent from the national legal framework, set out in paragraphs 12 to 19 of the present judgment, that the organisation and functioning of Santa Casa are governed by considerations and requirements relating to the pursuit of objectives in the public interest. The Gaming Department of Santa Casa has been given the powers of an administrative authority to open, institute and prosecute proceedings involving offences of illegal operation of games of chance in relation to which Santa Casa has the exclusive rights.
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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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70. It is also apparent from the case‑law that nationals of a Member State seeking employment in another Member State fall within the scope of Article 39 EC (see, to that effect, Case C‑292/89 Antonissen [1991] ECR I‑745, paragraph 12 and 13; Martínez Sala , cited above, paragraph 32; Case C‑138/02 Collins [2004] ECR I‑2703, paragraph 57; Ioannidis , cited above, paragraph 21; as well as Joined Cases C‑22/08 and C‑23/08 Vatsouras and Koupatantze [2009] ECR I‑0000, paragraph 36).
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57. Nationals of a Member State seeking employment in another Member State thus fall within the scope of Article 48 of the Treaty and, therefore, enjoy the right laid down in Article 48(2) to equal treatment.
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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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52. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite clear that the interpretation of EU 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 ( PreussenElektra , paragraph 39, and Hartlauer , paragraph 25).
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25. The Court can refuse to give a preliminary ruling on a question submitted by a national court only where, in particular, it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical (Case C‑308/06 Intertanko and Others [2008] ECR I‑0000, paragraph 32 and the case-law cited).
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111. De telles considérations, dans la mesure où elles fondent l’appréciation relative aux décisions litigieuses sur la base légale correcte, à savoir sur la réglementation en vigueur à la date de leur adoption (voir arrêt du 17 mai 2001, IECC/Commission, C‑449/98 P, Rec. p. I‑3875, point 87), ne sont entachées d’aucune erreur de droit et offrent une motivation suffisante du rejet des arguments avancés en première instance. Dès lors, les arguments des requérants tirés de la violation des principes d’égalité de traitement et de non-discrimination sont inopérants et celui tiré d’une insuffisance de motivation n’est pas fondé.
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22. Par ailleurs, il y a lieu de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (arrêts du 11 octobre 2001, Commission/Autriche, C‑110/00, Rec. p. I‑7545, point 13; du 14 juillet 2005, Commission/Allemagne, C‑433/03, Rec. p. I‑6985, point 32, et du 25 mars 2010, Commission/Espagne, C‑392/08, Rec. p. I‑2537, point 26).
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13 Moreover, the Court has repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and that the Court may not take account of any subsequent changes (see, inter alia, Case C-435/99 Commission v Portugal [2000] ECR I-11179, paragraph 16, and Case C-266/99 Commission v France [2001] ECR I-1981, paragraph 38).
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15 It should be observed that the use of a related distributor' s resale prices is justified since those prices can rightly be regarded as the prices of the first sale of the product in the ordinary course of trade . Brother markets its products on the domestic market through a distribution company which it controls financially and to which it entrusts tasks that are normally the responsibility of an internal sales department of the manufacturing organization .
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31. Similarly, it has been held that, in so far as a Union citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, their family member is not covered by that concept either, given that the rights conferred by that directive on the family members of a beneficiary of that directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiary’s family (see McCarthy , paragraph 42, and Dereci and Others , paragraph 55).
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42. Lastly, it should also be noted that, since a Union citizen such as Mrs McCarthy is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, her spouse is not covered by that concept either, given that the rights conferred by that directive on the family members of a beneficiary of that directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiary’s family (see, in relation to instruments of European Union law prior to Directive 2004/38, Case C‑243/91 Taghavi [1992] ECR I‑4401, paragraph 7, and Eind , paragraph 23).
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62. In various circumstances the Court of Justice has acknowledged that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him has ceased to have effect in the course of proceedings.
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57. As the Court has held, the concept of technical specification presupposes that the national measure refers to the product or its packaging as such and thus lays down one of the characteristics required of a product (see, to that effect, Case C-278/99 Van der Burg [2001] ECR I-2015, paragraph 20; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 45; and Case C-159/00 Sapod Audic [2002] ECR I-5031, paragraph 30).
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30 Accordingly, since the obligation to identify the packaging prescribed by the second paragraph of Article 4 of Decree No 92-377 does not seem to imply an obligation to mark or label that packaging, that obligation does not appear necessarily to refer to the product or its packaging as such. Interpreted in that way, that provision cannot be said to lay down the characteristics required of a product within the meaning of Article 1(1) of Directive 83/189 and, hence, cannot be regarded as a technical specification (see, in particular, Case C-278/99 Van der Burg [2001] ECR I-2015, paragraph 20).
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59. In addition, the fact that that regulation is not enforceable against individuals in a Member State in the language of which it has not been published has no bearing on the fact that, as part of the acquis communautaire , its provisions are binding on the Member State concerned as from its accession.
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132 It is to be observed, next, that the application of Article 52 of the Treaty in a given case depends, not on the question whether the Community has legislated in the area concerned by the business which is carried on, but on the question whether the situation under consideration is governed by Community law. Even if a matter falls within the power of the Member States, the fact remains that the latter must exercise that power consistently with Community law (see Case C-221/89 Factortame and Others [1991] ECR I-3905, paragraph 14; Case C-124/95 Centro-Com [1997] ECR I-81, paragraph 25; Case C-264/96 ICI v Colmer [1998] ECR I-4695, paragraph 19).
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19 Although direct taxation is a matter for the Member States, they must nevertheless exercise their direct taxation powers consistently with Community law (see Case C-279/93 Schumacker [1995] ECR I-225, paragraph 21; Case C-80/94 Wielockx [1995] ECR I-2493, paragraph 16; Case C-107/94 Asscher [1996] ECR I-3089, paragraph 36; and Case C-250/95 Futura Participations and Singer [1997] ECR I-2471, paragraph 19).
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43. It follows from Article 3(1) of Directive 2001/29 and Article 8 of the WIPO Copyright Treaty that for there to be communication to the public it is sufficient that the work is made available to the public in such a way that the persons forming that public may access it. Therefore, it is not decisive, contrary to the submissions of Rafael and Ireland, that customers who have not switched on the television have not actually had access to the works.
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33. In accordance with settled case-law, the Court has jurisdiction to provide a ruling, even where the facts of the main proceedings are outside the scope of European Union law, provided that the domestic legislation has adopted the same solutions as those adopted in European Union law and applies those solutions to a situation which is not covered by European Union law. According to the Court’s case-law, the legal order of the European Union clearly has an interest in ensuring that, to forestall future divergences of interpretation, any provision of European Union law should be interpreted uniformly, irrespective of the circumstances in which the provision is to apply (see, to that effect, in particular, 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‑0379, paragraphs 15 to 19, or Case C‑3/04 Poseidon Chartering [2006] ECR I‑2505, paragraphs 14 to 19).
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17 However, the national court has indicated that the Danish legislature, when transposing the provisions of the directive into national law, had decided to treat purely internal situations in the same way as those governed by the directive and had therefore aligned the provisions governing purely internal situations with Community law. The national court adds that an interpretation of the terms transfer of assets and branch of activity, in their Community context, is required in order to decide the case before it, that those terms feature in the directive, that they were incorporated in the national law transposing the directive and that their application has been extended to purely internal situations.
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18. Or, il est de jurisprudence constante que, dans le cadre du présent recours, qui a pour objet un manquement à l’exécution d’une décision en matière d’aides d’État qui n’a pas été déférée devant la Cour par l’État membre qui en est destinataire, ce dernier ne saurait être fondé à contester la légalité d’une telle décision (voir, notamment, arrêts du 27 juin 2000, Commission/Portugal, C‑404/97, Rec. p. I‑4897, point 34, et du 12 mai 2005, Commission/Grèce, C‑415/03, Rec. p. I‑3875, point 38).
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18. As regards the concept of restriction of competition ‘by object’, the Court has held that it must be interpreted restrictively and can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (see, to that effect, judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 58). That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 50 and the case-law cited).
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50. That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (see, to that effect, in particular, judgment in Allianz Hungária Biztosító and Others (EU:C:2013:160) paragraph 35 and the case-law cited).
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14. For that purpose the First Directive, having regard to the agreement between the national insurers ' bureaux, established a system based on the presumption that vehicles normally based on Community territory are covered by insurance (see the eighth recital). Article 3(1) of the First Directive thus provides that Member States are, subject to the derogations in Article 4, to take all appropriate measures to ensure that civil liability in respect of the use of vehicles is covered by insurance.
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44 It follows that the members of the CNSD cannot be characterised as independent experts (see, to that effect, Case C-185/91 Reiff [1993] ECR I-5801, paragraphs 17 and 19; Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraphs 16 and 18; and Joined Cases C-140/94 to C-142/94 DIP and Others [1995] ECR I-3257, paragraphs 18 and 19) and that they are not required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the general interest and the interests of undertakings in other sectors or users of the services in question (judgments cited above, Reiff, paragraphs 18 and 24; Delta Schiffahrts- und Speditionsgesellschaft, paragraph 17; and DIP and Others, paragraph 18).
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17 The Tariff Boards provided for by the GueKG are made up of tariff experts from the relevant sectors of the road haulage industry who are not bound by orders or instructions from the undertakings or associations which proposed them to the Federal Minister of Transport for appointment. Those boards cannot therefore be regarded as meetings of representatives of undertakings in the industry concerned.
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49. Secondly, it should be noted that Article 37 of Directive 92/50 does not contain a definition of the concept of an ‘abnormally low tender’. It is thus for the Member States and, in particular, the contracting authorities to determine the method of calculating an anomaly threshold constituting an ‘abnormally low tender’ within the meaning of that article (see, to that effect, the judgment in Lombardini and Mantovani , C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 67).
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53. When assessing the generic character of a name, the Court has held that it is necessary, under Article 3(1) of Regulation 2081/92, to take into account the places of production of the product concerned both inside and outside the Member State which obtained the registration of the name at issue, the consumption of that product and how it is perceived by consumers inside and outside that Member State, the existence of national legislation specifically relating to that product, and the way in which the name has been used in Community law (see Joined Cases C-465/02 and C-466/02 Germany and Denmark v Commission [2005] ECR I-9115, paragraphs 76 to 99).
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95. As to the Community legislation, it is true that the name ‘feta’ is used without further specification as to the Member State of origin in the combined customs nomenclature and in the Community legislation relating to export refunds.
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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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63
That special rule of jurisdiction, because it derogates from the principle stated in Article 2 of Regulation No 44/2001 that jurisdiction be based on the defendant’s domicile, must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by that regulation (see, inter alia, judgments of 1 December 2011 in Painer, C‑145/10, EU:C:2011:798, paragraph 74 and the case-law cited, and of 12 July 2012 in Solvay, C‑616/10, EU:C:2012:445, paragraph 21).
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21. That special rule of jurisdiction, because it derogates from the principle stated in Article 2 of Regulation No 44/2001 that jurisdiction be based on the defendant’s domicile, must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by that regulation (see Painer , paragraph 74 and the case-law cited).
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25 Those guidelines did not contain any definition of the term `different distributors'.
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145. 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 Court’s Rules of Procedure 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 Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraph 49, and Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 45).
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49. To begin with, it must be recalled that, 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-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34; Case C‑248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68; and Case C-41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 15).
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39 In those circumstances, the national legislation at issue in the main proceedings does not contain either procedural arrangements or substantive requirements capable of ensuring, with reasonable probability, that, when producing the draft tariff, the CNF conducts itself like an arm of the State working in the public interest.
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42
The Court has stated that it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interests of legal certainty which protects both the individual and the authorities concerned, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, to that effect, judgment of 8 September 2011, Q-Beef and Bosschaert, C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 36). By way of example, limitation periods of three years (judgment of 15 April 2010, Barth, C‑542/08, EU:C:2010:193, paragraph 28) or two years (judgment of 15 December 2011, Banca Antoniana Popolare Veneta, C‑427/10, EU:C:2011:844, paragraph 25), have been held to be compatible with the principle of effectiveness.
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25. That is the position in the case of a two-year time-limit since, in principle, that enables any normally attentive taxable person validly to assert the rights derived from EU law (see, to that effect, Alstom Power Hydro , paragraphs 20 and 21). This is true also of a two-year time-limit in respect of the right to a refund of VAT paid, but not due, to the tax authority.
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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. That principle, which applies to, inter alia, the legislative and regulatory authorities of the Member States when they apply European Union law, requires that measures implemented by means of a provision must be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, to that effect, Case C‑375/08 Pontini and Others [2010] ECR I‑5767, paragraph 87 and the case-law cited). That principle implies, inter alia, that, where there is European Union legislation which pursues a number of objectives, one of which is the main objective, a Member State which adopts a standard in the context of the discretion conferred on it by a provision of that legislation must comply with that main objective without hindering the attainment of the other objectives of that legislation. Therefore, in the light of those other objectives, such a national standard must be appropriate for ensuring that that main objective is attained and must not go beyond what is necessary to achieve it (see, by analogy, Case C‑491/06 Danske Svineproducenter , paragraphs 31, 32 and 40).
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32. Accordingly, it is inherent in the transposition procedure that the Member States were required to comply with the main objective of protecting animals during transport without hindering the attainment of the other objectives pursued by Directive 91/628.
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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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52. The Court found, in paragraph 68 of its judgment in Portugal v Commission , that a political and fiscal independence of central government which is sufficient as regards the application of Community rules on State aid presupposes not only that the infra‑State body has powers in the territory within its competence to adopt measures reducing the tax rate, regardless of any considerations related to the conduct of the central State, but also that, in addition, it assumes the political and financial consequences of such a measure.
The lack of a precondition
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68. It follows that political and fiscal independence of central government which is sufficient as regards the application of Community rules on State aid presupposes, as the United Kingdom Government submitted, that the infra-State body not only has powers in the territory within its competence to adopt measures reducing the tax rate, regardless of any considerations related to the conduct of the central State, but that in addition it assumes the political and financial consequences of such a measure.
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33. Under Article 3(2) of Directive 2002/22, Member States are to determine the most efficient and appropriate approach for ensuring the implementation of universal service, whilst respecting the principles of objectivity, transparency, non‑discrimination and proportionality and they are to seek to minimise market distortions, whilst safeguarding the public interest ( Commission v France , paragraph 29).
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49
Relying, in particular, on the case-law arising from the judgments of 16 November 2000, Weig v Commission (C‑280/98 P, EU:C:2000:627, paragraphs 52 to 68), and of 16 November 2000, Sarrió v Commission (C‑291/98 P, EU:C:2000:631, paragraphs 91 to 100), the appellant submits that there are numerous precedents in which the Court of Justice considered that it had to set aside the judgment of the General Court in so far as it had used a different calculation method, when reviewing fines, from that used by the Commission or by the General Court itself with regard to other undertakings implicated in the infringement at issue. Although it is true that the Court of Justice has already held, in particular in paragraph 181 of its judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062), that the Commission is not required to indicate the figures relating to the method of calculating the fines, it nevertheless pointed out that it is, at the very least, ‘preferable’ that the mechanism used to set the amount of the fine be given.
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96 It is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (Ferriere Nord, cited above, paragraph 31).
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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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29. First, it is clear from the Court's case-law that Article 22 of the Directive, which concerns recognition by Member States of the validity of data generated by animal experiments carried out in the territory of another Member State for one of the purposes listed in Article 3 of the Directive, that is to say the development, the manufacture and the quality, effectiveness and safety testing of drugs, foodstuffs or other substances or products and the protection of the environment, does indeed require the adoption of appropriate measures of transposition (see Case C-268/97 Commission v Belgium [1998] ECR I-6069, paragraph 14, and Commission v France , cited above, paragraph 59).
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14 As regards Article 22 of the Directive, it must be pointed out that it concerns the recognition by the Member States of the validity of data generated by experiments carried out in the territory of another Member State for one of the purposes listed in Article 3 of the Directive, that is to say, the development, manufacture, quality, effectiveness and safety testing not only of drugs but also of foodstuffs and other substances or products and the protection of the environment. As the Decrees of 22 and 25 September 1992 only concern tests on medicines for human or veterinary use and Article 6a of the Royal Decree of 3 July 1969, inserted by Royal Decree of 1 February 1996, only concerns the medicines registered, those provisions do not constitute a full transposition of Article 22 of the Directive.
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103 Consequently, the ban on the export of live bovine animals cannot be regarded as a manifestly inappropriate measure.
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26. The principle of equivalence requires that the national rule in question be applied without distinction, whether the infringement alleged is of European Union law or national law, where the purpose and cause of action a re similar (Case C-326/96 Levez [1998] ECR I-7835, paragraph 41; Case C‑78/98 Preston and Others [2000] ECR I‑3201, paragraph 55; and Case C‑63/08 Pontin [2009] ECR I‑0000, paragraph 45).
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41 The principle of equivalence requires that the rule at issue be applied without distinction, whether the infringement alleged is of Community law or national law, where the purpose and cause of action are similar (see, mutatis mutandis, paragraph 36 of the judgment of 15 September 1998 in Case C-231/96 Edis [1998] ECR I-4951).
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38. The answer to the second question must therefore be that Article 6(3) of the Habitats Directive establishes a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site, while Article 6(2) of the Habitats Directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive’s objectives, and cannot be applicable concomitantly with Article 6(3).
Third question
Question 3(a)
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39 Since it is in general terms, Protocol No 2 is applicable to the benefits paid under an occupational pension scheme.
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43 In the light of those provisions, the Member States and the parties concerned were reasonably entitled to consider that Article 119 did not apply to pensions paid under contracted-out schemes and that derogations from the principle of equality between men and women were still permitted in that sphere .
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28 A part-time employee whose contractual working hours are 18 receives, if he works 19 hours, the same overall pay as a full-time employee who works 19 hours.
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66
In that regard it must be recalled that, according to settled case-law, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category (judgments of 26 January 1999, Terhoeve, C‑18/95, EU:C:1999:22, paragraph 57; of 22 June 2011, Landtová, C‑399/09, EU:C:2011:415, paragraph 51; and of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 46). Disadvantaged persons must therefore be placed in the same position as persons enjoying the advantage concerned (judgment of 11 April 2013, Soukupová, C‑401/11, EU:C:2013:223, paragraph 35).
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35. As regards the consequences of failure to observe the principle of equal treatment in a situation such as that in the main proceedings, it must be recalled that, in accordance with established case-law, where discrimination contrary to European Union law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category (see Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 57; and Case C-399/09 Landtová [2011] ECR I-0000, paragraph 51). The disadvantaged person must therefore be placed in the same position as the person enjoying the advantage concerned.
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42
In adopting those provisions, the Commission therefore amended an essential element of Directive 2003/87.
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22. Concerning, second, the applicability of Regulation No 1408/71 to the CSG and the CRDS, the Court has held that those contributions fall within the scope of that regulation. The Court essentially found that it could not agree with the proposition that, since the CSG and the CRDS are really to be categorised as taxes, they fall outside the scope of the regulation. It added that the fact that a levy is categorised as a tax under national legislation does not mean that, as regards that regulation, that same levy cannot be regarded as falling within its scope (see, to that effect, Case C‑34/98 Commission v France [2000] ECR I‑995, paragraphs 33 and 34, and Case C‑169/98 Commission v France [2000] ECR I‑1049, paragraphs 31 and 32). Moreover, it should be noted that the question referred by the national court assumes that the contributions at issue fall within the scope of Regulation No 1408/71.
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31 As the Court has held, however, the fact that a worker is required to pay, in respect of the same earned income, social charges arising under the legislation of several States, although he can be an insured person only in respect of the legislation of one State, means that the worker must pay contributions twice over, contrary to the provisions of Article 13 of Regulation No 1408/71 (see in particular Case 102/76 Perenboom [1977] ECR 815, paragraph 13, and Case C-60/93 Aldewereld [1994] ECR I-2991, paragraph 26).
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28
As regards the first part of the second ground of appeal alleging that the Commission breached the EU law principle of good faith, it must be noted that, by the argument put forward in support, the appellant merely challenges the Commission’s decision. Accordingly, such a line of argument, which is not directed against the judgment under appeal, is inadmissible in an appeal.
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50
However, the Court’s case-law emphasises the fact that the assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned (judgment of 14 January 2016 in Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 50 and the case-law cited).
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50
The assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned (judgment in Briel and Others, C‑521/12, EU:C:2014:330, point 27).
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65. The Court has already stated, in paragraph 35 of Case C‑309/04 Fleisch-Winter , that in so far as the exporter, by lodging an application for a refund, continues to assert either expressly or impliedly that the product in question is of ‘sound and fair marketable quality’, it is for the exporter, according to the rules of evidence of national law, to prove that that condition is, in fact, satisfied if a declaration is questioned by the national authorities. In the case in the main proceedings, even if the size of the samples taken was insufficient, the result of the customs checks and the decisions of the Hauptzollamt show that the national customs authorities did question the exporter’s declaration.
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51. The various grounds for refusing registration in Article 3 of the Directive must therefore be interpreted in the light of the public interest underlying each of them (Case C-299/99 Philips [2002] ECR I-5475, paragraph 77).
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77 The various grounds for refusal of registration listed in Article 3 of the Directive must be interpreted in the light of the public interest underlying each of them (see, to that effect, Windsurfing Chiemsee, paragraphs 25 to 27).
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130 It is not in dispute that the 1996 amending protocol, concluded between the Federal Republic of Germany and the United States of America, added a Part III to the annex to the 1955 Agreement, concerning the principles relating to CRSs, including those applying to CRSs offered for use or used in the territory of the Federal Republic of Germany. By acting in that way, the Federal Republic of Germany infringed the exclusive external competence of the Community arising from Regulation No 2299/89.
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50. That conclusion is supported by the actual meaning of the term ‘generic’, as clarified by the case-law of the Court. The way in which the name of a product becomes generic is the result of an objective process, at the end of which that name, although referring to the geographical place where the product in question was originally manufactured or marketed, has become the common name of that product (see, to that effect, Joined Cases C‑465/02 and C‑466/02 Germany and Denmark v Commission [2005] ECR I‑9115, paragraphs 75 to 100, and Case C‑132/05 Commission v Germany [2008] ECR I‑957, paragraph 53).
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98. It should be borne in mind, however, that, at that time, there was not yet Community protection in place for designations of origin and geographical indications, which was established for the first time in the basic regulation. At the date of that response, the name ‘feta’ was protected in Greece only by traditional custom.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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7. According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C‑143/02 Commission v Italy [2003] ECR I‑2877, paragraph 11).
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11. It suffices to point out, in that regard, that according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia , Case C-148/00 Commission v Italy [2001] ECR I-9823, paragraph 7) and that a Member State cannot rely on provisions, practices or circumstances in its own legal order to justify failure to implement a directive within the prescribed period (see, to that effect, Case C-276/98 Commission v Portugal [2001] ECR I-1699, paragraph 20 and Case C-392/01 Commission v Spain [2002] ECR I-11111, paragraph 9).
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43. However, neither Article 190 EC nor the 1976 Act defines expressly and precisely who are to be entitled to the right to vote and to stand as a candidate in elections to the European Parliament.
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31. Moreover, the customs union necessarily implies that the free movement of goods between Member States should be ensured. That freedom could not itself be complete if it were possible for the Member States to impede or interfere in any way with the movement of goods in transit. It is therefore necessary, as a consequence of the customs union and in the mutual interest of the Member States, to acknowledge the existence of a general principle of freedom of transit of goods within the Community ( SIOT , paragraph 16).
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16 THE CUSTOMS UNION ESTABLISHED BY PART TWO , TITLE I , CHAPTER 1 OF THE EEC TREATY NECESSARILY IMPLIES THAT THE FREE MOVEMENT OF GOODS BETWEEN MEMBER STATES SHOULD BE ENSURED . THAT FREEDOM COULD NOT ITSELF BE COMPLETE IF IT WERE POSSIBLE FOR THE MEMBER STATES TO IMPEDE OR INTERFERE IN ANY WAY WITH THE MOVEMENT OF GOODS IN TRANSIT . IT IS THEREFORE NECESSARY , AS A CONSEQUENCE OF THE CUSTOMS UNION AND IN THE MUTUAL INTEREST OF THE MEMBER STATES , TO ACKNOWLEDGE THE EXISTENCE OF A GENERAL PRINCIPLE OF FREEDOM OF TRANSIT OF GOODS WITHIN THE COMMUNITY . THAT PRINCIPLE IS , MOREOVER , CONFIRMED BY THE REFERENCE TO ' ' TRANSIT ' ' IN ARTICLE 36 OF THE TREATY .
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54. À l’égard de ces arguments, il convient de relever qu’il n’est pas nécessaire, pour démontrer que la transposition d’une directive est insuffisante ou inadéquate, d’établir les effets réels de la législation nationale de transposition. En effet, c’est le texte même de cette législation qui porte en lui le caractère insuffisant ou défectueux de la transposition (voir, en ce sens, arrêts du 21 septembre 1999, Commission/Irlande, C‑392/96, Rec. p. I‑5901, point 60, et du 20 novembre 2008, Commission/Irlande, précité, point 59).
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43. Direct investments, that is to say, investments of any kind made by natural or legal persons which serve to establish or maintain lasting and direct links between the persons providing the capital and the company to which that capital is made available in order to carry out an economic activity, fall within the scope of Article 56 EC on the free movement of capital. That object presupposes that the shares held by the shareholder enable the latter to participate effectively in the management or control of that company (see, inter alia, Case C‑112/05 Commission v Germany [2007] ECR I‑8995, paragraph 18 and the case-law cited; Case C‑326/07 Commission v Italy , paragraph 35; and Case C-543/08 Commission v Portugal , paragraph 42).
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35. Direct investments, that is to say, investments of any kind made by natural or legal persons which serve to establish or maintain lasting and direct links between the persons providing the capital and the undertakings to which that capital is made available in order to carry out an economic activity fall within the ambit of Article 56 EC on the free movement of capital. That object presupposes that the shares held by the shareholder enable him to participate effectively in the management of that company or in its control ( Commission v Germany , paragraph 18, and case-law cited).
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31. In that connection, it should be noted that, in accordance with the third recital in the preamble to the Montreal Convention, the States Parties to that convention, recognising ‘the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’, decided to lay down a system of strict liability for air carriers.
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25. Leaving aside the question of the conditions which must be fulfilled so that a provision of a directive, which has not yet been transposed or which has been transposed incorrectly, may be relied upon before the national courts (Case C‑62/00 Marks & Spencer [2002] ECR I-6325, paragraph 25, and Case C-430/04 Feuerbestattungsverein Halle [2006] ECR I-4999, paragraphs 28 and 29), it is settled case-law that a directive can have direct effect only after the expiry of the time-limit laid down for its transposition into national law (Case C-316/93 Vaneetveld [1994] ECR I-763, paragraph 16, and Case C-348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I-6711, paragraph 33).
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25 Second, as the Court has consistently held, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, inter alia, Case 8/81 Becker [1982] ECR 53, paragraph 25; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 29; and Case C-319/97 Kortas [1999] ECR I-3143, paragraph 21).
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36. Force est de constater que, en l’absence de données chiffrées plus précises et permettant de conclure que l’économie roumaine risque d’être sérieusement perturbée par les répercussions du présent arrêt, la condition portant sur l’existence de troubles graves ne saurait être considérée comme établie.
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48. According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (Case C‑334/95 Krüger [1997] ECR I‑4517, paragraphs 22 and 23, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 46).
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22 It is established case-law that, in the procedure laid down by Article 177 of the Treaty providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it.
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19 In accordance with the principle of fiscal neutrality on which the Sixth Directive is based, that provision entails no distinction, as far as exemptions are concerned, between lawful and unlawful exports. When the latter consist of goods which fall within the scope of the Sixth Directive, they must accordingly be treated in the same manner as lawful exports of the same goods.
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115. The Court has already held that legislation which has as its objective the control of the consumption of alcohol so as to prevent the harmful effects caused to health of humans and society by alcoholic substances, and which thus seeks to combat alcohol abuse, reflects health and public policy concerns recognised by Article 36 TFEU (judgments in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 28, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 40).
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40. The Court has already ruled that legislation which has as its objective the control of the consumption of alcohol so as to prevent the harmful effects caused to health of humans and society by alcoholic substances, and which thus seeks to combat alcohol abuse, reflects health and public policy concerns recognised by Article 30 EC (see Case C‑434/04 Ahokainen and Leppik [2006] ECR I‑9171, paragraph 28).
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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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56. Indeed, it would be both to go beyond the objective of Regulation No 1408/71 and to exceed the purpose and scope of Article 42 EC to interpret that regulation as prohibiting a Member State from granting workers and members of their family broader social protection than that arising from the application of that regulation (see, to that effect, Case 69/79 Jordens‑Vosters [1980] ECR 75, paragraph 11; Case 21/87 Borowitz [1988] ECR 3715, paragraph 24; and Case C‑352/06 Bosmann [2008] ECR I‑3827, paragraphs 27 to 29 and 33).
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27. It follows that Community law does not require the competent German authorities to grant Mrs Bosmann the family benefit in question.
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36
As regards the objective pursued by Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) thereof, it must be recalled that, by authorising the detention of an applicant in order to secure transfer procedures pursuant to that regulation where there is a significant risk of absconding, those provisions provide for a limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter (see, by analogy, judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 49).
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65. Although that global assessment implies some interdependence between the relevant factors, and a low degree of similarity between the marks may therefore be offset by the strong distinctive character of the earlier mark (see, to that effect, judgment of 7 May 2009 in Case C-398/07 P Waterford Wedgwood v Assembled Investments (Proprietary) and OHIM , not published in the ECR, paragraph 33), the fact remains that where there is no similarity between the earlier mark and the challenged mark, the reputation or recognition enjoyed by the earlier mark and the fact that the goods or services respectively covered are identical or similar are not sufficient for it to be found that there is a likelihood of confusion between the marks at issue or that the relevant public makes a link between them (see, to that effect, Case C-254/09 P Calvin Klein Trademark Trust v OHIM [2010] ECR I‑0000, paragraph 53 and the case-law cited).
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33. It follows that there may be a likelihood of confusion, notwithstanding a low degree of similarity between the trade marks, where the goods or services covered by them are very similar and the earlier mark is highly distinctive (see, to that effect, Canon , paragraph 19, and Lloyd Schuhfabrik Meyer , paragraph 21).
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35. Under that provision, the true and fair view which the annual accounts of a company must give is based on a valuation of the assets not on the basis of their real value, but on the basis of their historical cost.
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58. Moreover, interested parties, as well as the other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with that obligation of the competent authority as to an evaluation (see Mellor , paragraph 58).
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58. Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority’s screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.
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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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13
It is to be recalled in respect of those submissions that the Charter’s field of application so far as concerns action by the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing European Union law (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 17).
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17. It is to be recalled in respect of those submissions that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing European Union law.
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85. Thus, in order for a prior administrative authorisation scheme to be justified even though it derogates from a fundamental freedom of that kind, it must be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily (Analir and Others , paragraph 38). Such a prior administrative authorisation scheme must likewise be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time and refusals to grant authorisation must also be capable of being challenged in judicial or quasi-judicial proceedings (Smits and Peerbooms , paragraph 90).
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31. According to settled case-law, the concepts used in the Brussels Convention – which include, in particular, that of ‘consumer’ for the purposes of Articles 13 to 15 of that Convention – must be interpreted independently, by reference principally to the scheme and purpose of the Convention, in order to ensure that it is uniformly applied in all the Contracting States (see, in particular, Case 150/77 Bertrand [1978] ECR 1431, paragraphs 14, 15 and 16; Case C-89/91 Shearson Lehman Hutton [1993] ECR I-139, paragraph 13; Case C‑269/95 Benincasa [1997] ECR I-3767, paragraph 12; Case C-99/96 Mietz [1999] ECR I‑2277, paragraph 26; and Case C-96/00 Gabriel [2002] ECR I-6367, paragraph 37).
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15IN FACT , IT WOULD NOT BE POSSIBLE TO GUARANTEE THE HARMONIOUS OPERATION OF ARTICLE 13 ET SEQ . OF THE CONVENTION IF THE EXPRESSION IN QUESTION WERE GIVEN DIFFERENT MEANINGS IN THE VARIOUS MEMBER STATES ACCORDING TO THE COURT FIRST SEISED OF A DISPUTE CONCERNING A CONTRACT FOR THE SALE OF GOODS ON INSTALMENT CREDIT TERMS OR THE COURT HAVING JURISDICTION TO ORDER ENFORCEMENT .
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56
Accordingly, Regulation No 1083/2006 forms part of the mechanism designed to ensure the proper management of EU funds and the safeguarding of the European Union’s financial interests (see, to that effect, judgment of 26 May 2016, Judeţul Neamţ and Judeţul Bacău, C‑260/14 and C‑261/14, EU:C:2016:360, paragraph 34).
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74. Moreover, it should be noted that, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification must also be interpreted in the light of the general principles of EU law, in particular the fundamental rights now guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’). Thus, the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court (see, to that effect, judgments in ERT , C‑260/89, EU:C:1991:254, paragraph 43; Familiapress , C‑368/95, EU:C:1997:325, paragraph 24, and Ålands Vindkraft , C‑573/12, EU:C:2014:2037, paragraph 125).
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125. It is settled case-law that where Member States adopt, in that way, measures by which they implement EU law, they are required to respect the general principles of that law, which include the principle of legal certainty (see, to that effect, inter alia, Plantanol , C‑201/08, EU:C:2009:539, paragraph 43 and the case-law cited, and IBV & Cie , C‑195/12, EU:C:2013:598, paragraph 49).
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18. In order to interpret Article 33 of the Sixth Directive it must be viewed against its legislative background. To that end it is useful to recall the objectives pursued by the introduction of a common system of VAT, as outlined in the judgment in Joined Cases C‑338/97, C‑344/97 and C‑390/97 Pelzl and Others [1999] ECR I-3319, paragraphs 13 to 20.
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17 In the Piageme judgment, cited above, the Court held (at paragraph 16) that, on the one hand, imposing a stricter obligation than the use of a language easily understood, that is to say, for example, the exclusive use of the language of a linguistic region and, on the other hand, failing to acknowledge the possibility of ensuring that the purchaser is informed by other measures, go beyond the requirements of the Directive.
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16 It follows from the foregoing that, on the one hand, imposing a stricter obligation than the use of a language easily understood, that is to say for example the exclusive use of the language of a linguistic region and, on the other hand, failing to acknowledge the possibility of ensuring that the purchaser is informed by other measures, goes beyond the requirements of the directive. The obligation exclusively to use the language of the linguistic region constitutes a measure having equivalent effect to a quantitative restriction on imports, prohibited by Article 30 of the Treaty.
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14 On that point, the Court has consistently held that, in order to determine whether a provision of Community law is consonant with the principle of proportionality, it is necessary to establish, in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim and, in the second place, whether they are necessary for its achievement ( see, in particular, the judgment of 22 January 1986 in Case 266/84 Denkavit France v Forma (( 1986 )) ECR 149, paragraph 17 ).
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24 Since the wording of the first sentence of the first subparagraph of Article 10(2) of Regulation No 3887/92 presents difficulties of interpretation regarding the question whether [animals] found during checks refers to animals counted during a check or to animals which the competent authorities found, during that check, to be eligible under the Community aid scheme, it is necessary to examine that provision in the light of the purpose of the regulation and, since it is open to several interpretations, preference should be given to the interpretation which ensures that the provision retains its effectiveness (see, in particular, Case C-434/97 Commission v France [2000] ECR I-1129, paragraph 21, and Case C-403/99 Italy v Commission [2001] ECR I-6883, paragraph 28).
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21 The Court has consistently held in regard to a situation of this kind that, where a provision of Community law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (see, inter alia, Case 187/87 Saarland and Others v Minister for Industry, Post and Telecommunications and Tourism and Others [1988] ECR 5013, paragraph 19).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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35. In that regard, the Court explained that, while it is common ground that the expression ‘insurance transactions’ in Article 13B(a) of the Sixth Directive covers in any event cases where the transaction in question is carried out by the actual insurer who undertook to cover the risk insured against, such an expression does not cover solely transactions carried out by the insurers themselves but is broad enough in principle to include the provision of insurance cover by a taxable person who is not himself an insurer but, in the context of a block policy, procures such cover for his customers by making use of the supplies of an insurer who assumes the risk insured (see CPP , paragraph 22; Skandia , paragraph 38; and Taksatorringen , paragraph 40).
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40. The Court has, admittedly, stated that the expression " insurance transactions" did not cover solely transactions carried out by the insurers themselves but was broad enough in principle to include the provision of insurance cover by a taxable person who was not himself an insurer but, in the context of a block policy, procured such cover for his customers by making use of the supplies of an insurer who assumed the risk insured ( Card Protection Plan , paragraph 22, and Skandia , paragraph 38).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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30
First, it must be held that such a provision does not fall within the category of technical specifications within the meaning of Article 1(3) of Directive 98/34, in so far as it is undisputed that the provisions that lay down the requirements and general objectives in relation to safety and protection, without necessarily referring to the product concerned or its packaging as such and thus without laying down the characteristics of that product, do not constitute technical specifications (see, to that effect, judgment of 9 June 2011, Intercommunale Intermosane and Fédération de l’industrie et du gaz, C‑361/10, EU:C:2011:382, paragraphs 17 and 18).
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17. It must be noted that those minimum requirements include requirements and general objectives in relation to safety and protection, without necessarily referring to the product concerned or its packaging as such and thus without laying down the characteristics of that product.
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35. As is apparent from its second recital, the main aim of that directive is to avoid a taxable person established in a Member State being subjected to double taxation by reason of his having to bear the definitive burden of a tax invoiced to him in another Member State. As the Commission of the European Communities has stated, the right of a taxable person established in a Member State to obtain refund of VAT paid in another Member State, in the manner governed by the Eighth Directive, is the counterpart of such a persons right established by the Sixth Directive to deduct input VAT in his own Member State.
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20. Although it is true that It is true that in Bachmann (paragraph 28) and Case C-300/90 Commission v Belgium [1992] ECR I‑305, paragraph 21, the Court accepted that the need to safeguard the coherence of the tax system could justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. Subsequently, however, it has stated that, in Bachmann and Commission v Belgium , there was a direct link, with respect to the taxpayer subject to income tax, between the deductibility of the insurance contributions from taxable income and the later taxation of the sums paid by the insurers under pension and life assurance contracts, and that link had to be maintained in order to preserve the coherence of the tax system concerned (see, inter alia, Case C-484/93 Svensson and Gustavsson [1995] ECR I‑3955, paragraph 18, and Case C-319/02 Manninen [2004] ECR I-0000, paragraph 42). Where there is no such direct link, the argument based on the need to safeguard the coherence of the tax system cannot be relied upon (see, inter alia, Weidert and Paulus , paragraphs 20 and 21).
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42. In that respect, it should be noted that, in paragraphs 28 and 21 respectively of the judgments in Bachmann and Commission v Belgium , the Court of Justice acknowledged that the need to preserve the cohesion of a tax system might justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. However, for an argument based on such justification to succeed, a direct link had to be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, to that effect, Case C-484/93 Svensson and Gustavsson [1995] ECR I‑3955, paragraph 18; Asscher , paragraph 58; ICI , paragraph 29; Case C-55/98 Vestergaard [1999] ECR I‑7641, paragraph 24; Case C-436/00 X and Y [2002] ECR I-10829, paragraph 52). As is shown by paragraphs 21 to 23 of the judgment in Bachmann and paragraphs 14 to 16 of the judgment in Commission v Belgium , those judgments are based on the finding that, in Belgian law, there was a direct link, in relation to the same taxpayer liable to income tax, between the ability to deduct insurance contributions from taxable income and the subsequent taxation of sums paid by the insurers.
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36 Accordingly, providing access to roads on payment of a toll constitutes a supply of services for consideration within the meaning of Article 2(1) of the Sixth Directive.
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84. It is therefore important to verify, on a case by case basis, whether the acts of the organisation in question can endanger national security or public order within the meaning of Article 24(1) of Directive 2004/83. In that regard, the Court has held, in relation to Article 12(2)(b) of that directive, that terrorist acts, which are characterised by their violence towards civilian populations, even if committed with a purportedly political objective, fall to be regarded as serious non-political crimes within the meaning of that provision (judgment in B and D , C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 81).
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81. First, it is clear that terrorist acts, which are characterised by their violence towards civilian populations, even if committed with a purportedly political objective, fall to be regarded as serious non-political crimes within the meaning of point (b).
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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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48
Finally, the interpretation set out in paragraph 45 of the present judgment takes into account the needs of the common agricultural policy, as required by the third and fourth recitals of the Customs Code (see, by analogy, judgment of 11 May 2006 in Friesland Coberco Dairy Foods, C‑11/05, EU:C:2006:312, paragraph 51). It should be borne in mind that, as is clear from a reading of Article 38 TFEU, in conjunction with headings 22.08 and 22.09 of Annex I to that Treaty, the production of bioethanol in the European Union is an agricultural activity covered by that common policy and benefiting, in principle, from the protection offered by the particularly high customs duties applicable to imports of that product into the European Union. The interpretation adopted accordingly ensures that protection by precluding the outward processing procedure from assisting a trader seeking to evade those customs duties.
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51. That interpretation of the objective pursued by Article 133(e) of the Customs Code, that the interests of all Community producers must be protected, namely both those of the producers of finished products and those of the producers of raw materials used to produce those products, is, moreover, the only interpretation capable of taking account of the requirements of the common Community policies, including those of the common agricultural policy, as required by the third and fourth recitals in the preamble to the Customs Code.
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De surcroît, en vertu du principe de coopération loyale, tel qu’énoncé à l’article 4, paragraphe 3, TUE, les États membres doivent adopter toute mesure visant à assurer la mise en œuvre et le respect du droit de l’Union, et il résulte d’une jurisprudence constante qu’un État membre ne saurait exciper de situations de son ordre interne pour justifier le non-respect des obligations et des délais résultant du droit de l’Union (arrêt du 16 juillet 2015, , C‑140/14, non publié, EU:C:2015:501, points 76 et 77 ainsi que jurisprudence citée).
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29. In accordance with the Court’s settled case-law, in order to ensure, as far as possible, that the rights and obligations which derive from that regulation for the Member States and the persons to whom it applies are equal and uniform, the concept of ‘civil and commercial matters’ should not be interpreted as a mere reference to the internal law of one or other of the States concerned. That concept must be regarded as an autonomous concept to be interpreted by reference, first, to the objectives and scheme of Regulation No 44/2001 and, second, to the general principles which stem from the corpus of the national legal systems (judgments in Schneider , C‑386/12, EU:C:2013:633, paragraph 18 and the case-law cited, and flyLAL-Lithuanian Airlines , C‑302/13, EU:C:2014:2319, paragraph 24 and the case-law cited).
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18. Furthermore, according to settled case-law, the concept of ‘civil and commercial matters’ for the purposes of Article 1 of Regulation No 44/2001 must be regarded as an autonomous concept to be interpreted by reference, first, to the objectives and scheme of that regulation and, second, to the general principles which stem from the corpus of the national legal systems. As a particular consequence, the scope of Regulation No 44/2001 must be determined essentially in the light of the legal relationships between the parties to the action or the subject-matter of the action (see, to that effect, Case C‑343/04 ČEZ [2006] ECR I‑4557, paragraph 22, and Case C‑420/07 Apostolides [2009] ECR I‑3571, paragraphs 41 and 42 and the case-law cited).
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62. It follows that the Community judicature is empowered to exercise its unlimited jurisdiction where the question of the amount of the fine is before it and that that jurisdiction may be exercised to reduce that amount as well as to increase it.
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96. There are two aspects to that concept. The first aspect, which is external, entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (Case C-506/04 Wilson [2006] ECR I-8613, paragraphs 50 and 51, and RTL Belgium , paragraph 39). The second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests in relation to the subject-matter of those proceedings ( Wilson , paragraph 52, and RTL Belgium , paragraph 40).
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50. The concept has two other aspects.
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51. In addition, the Court has already held that punishable acts consisting of exporting and of importing the same narcotic drugs and which are prosecuted in different Contracting States party to the CISA are, in principle, to be regarded as ‘the same acts’ for the purposes of Article 54 ( Van Esbroeck , paragraph 42).
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50. That prohibition is in addition to those set out in Article 10(a) and (b) of that directive, which refer to the scenarios described in Article 4 of the directive, and is justified by the fact that, even though the taxes in question are not imposed on capital contributions as such, they are nevertheless imposed on account of essential formalities connected with the company’s legal form, in other words on account of the instrument employed for raising capital, so that their continued existence might also frustrate the aims of that directive (see, to that effect, Case C‑264/04 Badischer Winzerkeller [2006] ECR I‑5275, paragraph 19, and the case‑law cited).
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19. The Court has already had occasion to point out that the prohibition under Article 10(c) of the directive is in addition to those set out in Article 10(a) and (b) of that directive, which refers to the scenarios described in Article 4 of the directive (see, to that effect, Case C-152/97 AGAS [1998] ECR I-6553, paragraph 21). That prohibition is justified by the fact that, even though the taxes in question are not imposed on capital contributions as such, they are nevertheless imposed on account of formalities connected with the company’s legal form, in other words on account of the instrument employed for raising capital, so that their continued existence would similarly risk frustrating the aims of the directive (Case C-2/94 Denkavit Internationaal and Others [1996] ECR I-2827, paragraph 23, and AGAS , paragraph 21).
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28. The national provisions which govern compensation for road accidents cannot, therefore, deprive those provisions of their effectiveness.
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64. Where application in accordance with those requirements is not possible, the national court must fully apply Community law and protect the rights conferred thereunder on individuals, if necessary disapplying any provision in so far as its application would, in the circumstances of the case, lead to a result contrary to Community law (see, in particular, Case C-347/96 Solred [1998] ECR I-937, paragraph 30, and Engelbrecht , paragraph 40).
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30 The Court has consistently held that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule (Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629, paragraph 21).
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65. That finding is supported by Directives 2009/72 and 2009/73 which are designed, inter alia, to achieve the same objectives, as can be seen both from recitals 3, 4, 9 to 12, 15, 25 and 44 in the preamble to Directive 2009/72 and from recitals 3, 4, 6 to 13, 22 and 40 of Directive 2009/73. In particular, recitals 4, 9, 11, 15, 25, 26 and 44 of Directive 2009/72 and recitals 4, 6, 8, 12, 22, 25 and 40 in the preamble to Directive 2009/73 disclose the wish of the European Union legislature to ensure non‑discriminatory access to electricity or gas distribution systems and transparency in the markets, to prevent cross-subsidisation, to ensure adequate investment in the networks in order to guarantee the stable security of supply of electricity and gas and to prevent exchanges of confidential information between the system operators and the generation/production and supply undertakings.
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36. Une telle prise en compte se heurterait, par ailleurs, à la règle selon laquelle l’administration fiscale ne saurait percevoir au titre de la TVA un montant supérieur à celui que l’assujetti a perçu (voir, notamment, arrêts Elida Gibbs, précité, point 24; du 3 juillet 1997, Goldsmiths, C‑330/95, Rec. p. I‑3801, point 15, ainsi que Balkan and Sea Properties et Provadinvest, précité, point 44).
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44. Article 73 of the VAT Directive is the expression of a fundamental principle, the corollary of which is that the tax authorities may not collect as VAT an amount exceeding the tax paid to the taxable person (see, to that effect, Case C‑330/95 Goldsmiths [1997] ECR I‑3801, paragraph 15).
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30. The fact that discharges of fresh water and alluvia into the marine environment, which are at issue in the present action, have not yet been the subject of Community legislation is not capable of calling that finding into question.
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41 It should, moreover, be remembered that, according to equally settled case-law (see, in particular, Case 120/78 Rewe-Zentral [1979] ECR 649, known as Cassis de Dijon, paragraph 8), in the absence of common rules applying to the products concerned, the obstacles to free movement within the Community resulting from disparities between national provisions must be accepted in so far as those national provisions, which are applicable without distinction to national products and to imported products, can be justified as being necessary in order to satisfy imperative requirements of Community law, such as those relating to the protection of users and the proper functioning of the public telecommunications network (see Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraphs 30 and 31).
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31 In the absence of Community rules on the establishment of public telecommunications networks, and in view of the technical diversity of the networks in the Member States, the Member States retain, on the one hand, the power to lay down technical specifications which telephone equipment must meet to be capable of being connected to the public network and, on the other, the power to examine whether the said equipment is fit to be connected to the network in order to satisfy the imperative requirements regarding the protection of users as consumers of services and the protection of the public network and its proper functioning.
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36. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 88; Servizi Ausiliari Dottori Commercialisti , paragraph 61; and Essent Netwerk Noord and Others , paragraph 81).
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20 It must be borne in mind from the outset that, as has consistently been held, one and the same levy cannot at the same time fall within the class of charges having an effect equivalent to a customs duty, referred to in Articles 9 and 12, and within that of internal taxes, referred to in Article 95 of the Treaty (Case 193/85 Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085, paragraphs 8 to 11). The essential feature of a charge having an effect equivalent to a customs duty which distinguishes it from an internal tax resides in the fact that the former is borne solely by an imported product as such whilst the latter is borne both by imported and domestic products, applying systematically to categories of products in accordance with objective criteria irrespective of the origin of the products (Case 90/79 Commission v France [1981] ECR 283, paragraphs 12 to 14).
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9 LA CARACTERISTIQUE ESSENTIELLE D' UNE TAXE D' EFFET EQUIVALANT A UN DROIT DE DOUANE, QUI LA DISTINGUE D' UNE IMPOSITION INTERIEURE, RESIDE DONC DANS LA CIRCONSTANCE QUE LA PREMIERE FRAPPE EXCLUSIVEMENT LE PRODUIT IMPORTE EN TANT QUE TEL, TANDIS QUE LA SECONDE FRAPPE A LA FOIS DES PRODUITS IMPORTES ET NATIONAUX .
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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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35. However, the Court has repeatedly held that the provisions of Chapter 3 of Title II of the EAEC Treaty are to be interpreted broadly in order to give them practical effect (see, inter alia, judgments in Commission v Council , EU:C:2002:734, paragraph 78, and ČEZ , EU:C:2009:660, paragraph 100). Those provisions, which include Articles 30 EA and 31 EA, accordingly are intended to ensure the consistent and effective protection of the health of the general public against the dangers arising from ionising radiations, whatever their source and whatever the categories of persons exposed to such radiations (judgments in Parliament v Council , EU:C:1991:373, paragraph 14, and ČEZ , EU:C:2009:660, paragraph 112).
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112. These aspects are elaborated on in Articles 30 EA to 39 EA, which make up Chapter 3 of Title II of the EAEC Treaty, and are, as the Court has noted earlier, intended to ensure the consistent and effective protection of the health of the general public against the dangers arising from ionising radiations, whatever their source and whatever the categories of persons exposed to such radiations (Case C‑70/88 Parliament v Council [1991] ECR I‑4529, paragraphs 13 and 14).
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66. It follows that the decision to register a designation as a PDO or as a PGI may only be taken by the Commission if the Member State concerned has submitted to it an application for that purpose and that such an application may only be made if the Member State has checked that it is justified. That system of division of powers is attributable particularly to the fact that registration assumes that it has been verified that a certain number of conditions have been met, which requires, to a great extent, detailed knowledge of matters particular to the Member State concerned, matters which the competent authorities of that State are best placed to check (see Carl Kühne and Others , paragraph 53).
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54. It should also be borne in mind that, under Article 1(u)(i) of Regulation No 1408/71, ‘the term family benefits means all benefits in kind or in cash intended to meet family expenses’. In this regard, the Court has held that family benefits are intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses (see Case 104/84 Kromhout [1985] ECR 2205, paragraph 14, and Offermanns , paragraph 38).
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38 In analysing the constituent elements of the benefit, it must be recalled that, according to Article 1(u)(i) of Regulation No 1408/71, family benefits means all benefits in kind or in cash intended to meet family expenses. In this regard, the Court has held that family benefits are intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses (see Case 104/84 Kromhout [1985] ECR 2205, paragraph 14).
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Par conséquent, c’est sans commettre d’erreur de droit que le Tribunal a estimé que la chambre de recours avait considéré, à bon droit, au point 62 de la décision litigieuse, que le consommateur ferait une distinction entre les signes en cause, en dépit de leurs similitudes visuelles et phonétiques.
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59 The trade mark owner may therefore oppose any repackaging involving a risk of the product inside the package being exposed to tampering or to influences affecting its original condition. To determine whether that applies, account must be taken, as the Court held in paragraph 10 of the Hoffmann-La Roche judgment, of the nature of the product and the method of repackaging.
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10IN THIS RESPECT THE ANSWER MUST VARY ACCORDING TO THE CIRCUMSTANCES AND IN PARTICULAR ACCORDING TO THE NATURE OF THE PRODUCT AND THE METHOD OF REPACKAGING . DEPENDING ON THE NATURE OF THE PRODUCT REPACKAGING IN MANY CASES INEVITABLY AFFECTS ITS CONDITION , WHILE IN OTHERS REPACKAGING INVOLVES A MORE OR LESS OBVIOUS RISK THAT THE PRODUCT MIGHT BE INTERFERED WITH OR ITS ORIGINAL CONDITION OTHERWISE AFFECTED . NEVERTHELESS , IT IS POSSIBLE TO CONCEIVE OF THE REPACKAGING BEING UNDERTAKEN IN SUCH A WAY THAT THE ORIGINAL CONDITION OF THE PRODUCT CANNOT BE AFFECTED . THIS MAY BE SO WHERE , FOR EXAMPLE , THE PROPRIETOR OF THE TRADE-MARK HAS MARKETED THE PRODUCT IN A DOUBLE PACKAGING AND THE REPACKAGING AFFECTS ONLY THE EXTERNAL PACKAGING , LEAVING THE INTERNAL PACKAGING INTACT , OR WHERE THE REPACKAGING IS INSPECTED BY A PUBLIC AUTHORITY FOR THE PURPOSE OF ENSURING THAT THE PRODUCT IS NOT ADVERSELY AFFECTED . WHERE THE ESSENTIAL FUNCTION OF THE TRADE-MARK TO GUARANTEE THE ORIGIN OF THE PRODUCT IS THUS PROTECTED , THE EXERCISE OF HIS RIGHTS BY THE PROPRIETOR OF THE TRADE-MARK IN ORDER TO FETTER THE FREE MOVEMENT OF GOODS BETWEEN MEMBER STATES MAY CONSTITUTE A DISGUISED RESTRICTION WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 36 OF THE TREATY IF IT IS ESTABLISHED THAT THE USE OF THE TRADE-MARK RIGHT BY THE PROPRIETOR , HAVING REGARD TO THE MARKETING SYSTEM WHICH HE HAS ADOPTED , WILL CONTRIBUTE TO THE ARTIFICIAL PARTITIONING OF THE MARKETS BETWEEN MEMBER STATES .
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90. En effet, seules ces propositions de mesures utiles sont soumises à l’acceptation des États membres, comme l’indique le point 197 des lignes directrices agricoles, alors que les autres dispositions de ces dernières constituent seulement des règles générales indicatives qui s’imposent à la Commission (voir, en ce sens, arrêt du 13 juin 2002, Pays-Bas/Commission, C‑382/99, Rec. p. I‑5163, point 24 et jurisprudence citée), sans lier les États membres. Elles ne sauraient a fortiori lier le Conseil dans la mesure où l’article 88, paragraphe 2, troisième alinéa, CE lui donne le pouvoir de déroger, dans des circonstances exceptionnelles, aux dispositions de l’article 87 CE ou aux règlements prévus à l’article 89 CE.
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64. In that respect, it must be noted that, in the framework of Article 39 EC, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is entitled to freedom of movement as a worker (see, to that effect, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17, and Case C-138/02 Collins [2004] ECR I-2703, paragraph 26).
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26. In accordance with the Court’s case-law, the concept of ‘worker’, within the meaning of Article 48 of the Treaty and of Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17, Martínez Sala , paragraph 32, and Case C-337/97 Meeusen [1999] ECR I‑3289, paragraph 13).
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67. Since it is evident that the present ground of appeal does not change the subject-matter of the proceedings before the Court of First Instance, the Council’s argument concerning the ground’s inadmissibility in so far as it refers to the ECHR is unfounded and must be rejected.
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112. In the present case, review of whether Article 1(1) and (2), Article 2(1) and (2) and Article 3(1) of the contested decision are severable from the remainder of that decision requires consideration of the scope of those provisions, in order to be able to assess whether their annulment would alter the Directive’s spirit and substance (see, to that effect, Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 29).
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29. In the present case, review of whether the provisions whose annulment is sought are severable requires consideration of the substance of the case, that is to say of the scope of those provisions, in order to be able to assess whether their annulment would alter the Directive’s spirit and substance.
The action
The rules of law in whose light the Directive’s legality may be reviewed
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45. Compte tenu de l’ensemble des considérations qui précèdent, il y a lieu de répondre à la première question:
– Lorsque, en application de l’article 108, paragraphe 3, TFUE, la Commission a ouvert la procédure formelle d’examen prévue au paragraphe 2 dudit article à l’égard d’une mesure non notifiée en cours d’exécution, une juridiction nationale, saisie d’une demande tendant à la cessation de l’exécution de cette mesure et à la récupération des sommes déjà versées, est tenue d’adopter toutes les mesures nécessaires en vue de tirer les conséquences d’une éventuelle violation de l’obligation de suspension de l’exécution de ladite mesure.
– À cette fin, la juridiction nationale peut décider de suspendre l’exécution de la mesure en cause et d’enjoindre la récupération des montants déjà versés. Elle peut aussi décider d’ordonner des mesures provisoires afin de sauvegarder, d’une part, les intérêts des parties concernées et, d’autre part, l’effet utile de la décision de la Commission d’ouvrir la procédure formelle d’examen.
– Lorsque la juridiction nationale éprouve des doutes sur le point de savoir si la mesure en cause constitue une aide d’État au sens de l’article 107, paragraphe 1, TFUE ou quant à la validité ou à l’interprétation de la décision d’ouvrir la procédure formelle d’examen, elle peut, d’une part, demander à la Commission des éclaircissements et, d’autre part, elle peut ou doit, conformément à l’article 267, deuxième et troisième alinéas, TFUE, poser une question préjudicielle à la Cour.
Sur les deuxième et troisième questions
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43 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9).
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12ARTICLE 3 OF REGULATION NO 1778/77 IS THEREFORE OF DIRECT AND INDIVIDUAL CONCERN TO THOSE IMPORTERS AND CONSEQUENTLY THE APPLICATIONS LODGED BY THE SUBSIDIARIES , AS IMPORTERS OF NTN PRODUCTS , ARE ADMISSIBLE . AS A RESULT THE APPLICATION LODGED BY NTN AGAINST THAT ARTICLE IS ALSO ADMISSIBLE .
THE SUBSTANCE OF THE APPLICATION
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81 Finally, the principle of subsidiarity, as interpreted by the German Government to the effect that intervention by public authorities, and particularly Community authorities, in the area in question must be confined to what is strictly necessary, cannot lead to a situation in which the freedom of private associations to adopt sporting rules restricts the exercise of rights conferred on individuals by the Treaty.
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31. In those circumstances, as maintained by L.u.P. at the hearing, and as acknowledged as being possible by the national court and the Commission, the Court finds that, in the light of the objective of reducing health care costs pursued by the abovementioned exemptions, medical tests such as those at issue in the main proceedings, which have as their purpose the observation and examination of patients for prophylactic purposes, may constitute ‘medical care’ within the meaning of Article 13A(1)(b) of the Sixth Directive or ‘the provision of medical care’ within the meaning of letter (c) of the same paragraph (see, to that effect, Commission v France , paragraph 30).
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30 In those circumstances, the taking of the sample and the transmission of the sample to a specialised laboratory constitute services which are closely related to the analysis, so that they must be treated in the same way as the analysis for fiscal purposes and, accordingly, must not be subject to VAT.
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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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33
The objective characteristics and properties of products must be capable of being assessed at the time of customs clearance (judgments in Foods Import, C‑38/95, EU:C:1996:488, paragraph 17; Medion and Canon Deutschland, C‑208/06 and C‑209/06, EU:C:2007:553, paragraph 36; and ALKA, C‑635/13, EU:C:2015:268, paragraph 37).
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37. It follows from the Court’s settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes. The objective characteristics and properties of products must be capable of being assessed at the time of customs clearance (see, to that effect, judgment in Panasonic Italia and Others , C‑472/12, EU:C:2014:2082, paragraphs 35 and 36 and the case-law cited).
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78. Accordingly, it does not appear that, in authorising the 2000-2006 aid scheme, the Commission infringed the principle of equal treatment.
The validity of the contested decision in the light of the obligation to state reasons
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39. It is only when the grounds for exclusion concerned do not relate to the professional qualities of economic operators, and, therefore, do not fall within that exhaustive list that it is possible to consider whether those grounds may be permissible under the principles or other rules of EU public procurement law (see, to this effect, Fabricom , paragraphs 25 to 36; Michaniki , paragraphs 44 to 69; and Case C-538/07 Assitur [2009] ECR I-4219, paragraphs 21 to 33).
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22. It is clear that a national legislative measure such as that at issue in the main proceedings is intended to prevent any potential collusion between participants in the same procedure for the award of a public contract and to safeguard the equal treatment of candidates and the transparency of the procedure.
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103. As the Court has already held, the principle of subsidiarity applies where the Community legislature makes use of Article 95 EC, inasmuch as that provision does not give it exclusive competence to regulate economic activity on the internal market, but only a certain competence for the purpose of improving the conditions for its establishment and functioning by eliminating barriers to the free movement of goods and the freedom to provide services or by removing distortions of competition ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 179).
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42 As the Court has held (see the judgment in Joined Cases C-60 and C-61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, paragraph 25, and the judgment in Case C-12/86 Demirel v Stadt Schwaebisch Gmund [1987] ECR 3719, paragraph 28), it has no power to examine the compatibility with the European Convention on Human Rights of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights.
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28 AS TO THE POINT WHETHER ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS HAS ANY BEARING ON THE ANSWER TO THAT QUESTION, IT MUST BE OBSERVED THAT, AS THE COURT RULED IN ITS JUDGMENT OF 11 JULY 1985 IN JOINED CASES 60 AND 61/84 CINETHEQUE V FEDERATION NATIONALE DES CINEMAS FRANCAIS (( 1985 )) ECR 2605, AT P . 2618, ALTHOUGH IT IS THE DUTY OF THE COURT TO ENSURE OBSERVANCE OF FUNDAMENTAL RIGHTS IN THE FIELD OF COMMUNITY LAW, IT HAS NO POWER TO EXAMINE THE COMPATIBILITY WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS OF NATIONAL LEGISLATION LYING OUTSIDE THE SCOPE OF COMMUNITY LAW . IN THIS CASE, HOWEVER, AS IS APPARENT FROM THE ANSWER TO THE FIRST QUESTION, THERE IS AT PRESENT NO PROVISION OF COMMUNITY LAW DEFINING THE CONDITIONS IN WHICH MEMBER STATES MUST PERMIT THE FAMILY REUNIFICATION OF TURKISH WORKERS LAWFULLY SETTLED IN THE COMMUNITY . IT FOLLOWS THAT THE NATIONAL RULES AT ISSUE IN THE MAIN PROCEEDINGS DID NOT HAVE TO IMPLEMENT A PROVISION OF COMMUNITY LAW . IN THOSE CIRCUMSTANCES, THE COURT DOES NOT HAVE JURISDICTION TO DETERMINE WHETHER NATIONAL RULES SUCH AS THOSE AT ISSUE ARE COMPATIBLE WITH THE PRINCIPLES ENSHRINED IN ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS .
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98. However, the Kingdom of Spain has not explained why appropriate labelling, informing consumers of the nature, the ingredients and the characteristics of products based on medicinal herbs, would not adequately meet that objective where the classification of those products as medicinal products is not justified on grounds of public health (see, by analogy, Commission v France , paragraph 75).
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32. In that regard, the third and fourth recitals in the preamble give as a reason for the adoption of that regulation the fact that the period of effective protection under the patent is insufficient to cover the investment put into pharmaceutical research, taking into account the period that elapses between the lodging of a patent application for a new medicinal product and the grant of the marketing authorisation for it (see, to that effect, AHP Manufacturing , cited above, paragraph 30).
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30. Regarding the objectives of Regulation No 1768/92, firstly, it must be noted that the fundamental objective of the Regulation, as set out in the first and second recitals in the preamble thereto, is to ensure sufficient protection to encourage pharmaceutical research, which plays a decisive role in the continuing improvement in public health (Case C‑392/97 Farmitalia [1999] ECR I‑5553, paragraph 19). In that regard, the third and fourth recitals in the preamble give as a reason for the adoption of the Regulation the fact that the period of effective protection under the patent is insufficient to cover the investment put into the pharmaceutical research. Regulation No 1768/92 thus seeks to make up for that insufficiency by creating an SPC for medicinal products. It seeks, in addition, to confer supplementary protection on the holders of national or European patents, without instituting any preferential ranking amongst them ( Biogen , paragraphs 26 and 27).
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11 THE ARGUMENT CONCERNING THE PROMISE ALLEGEDLY MADE BY CERTAIN COMMISSION OFFICIALS MUST ALSO BE REJECTED , SINCE NO OFFICIAL CAN GIVE A VALID UNDERTAKING NOT TO APPLY COMMUNITY LAW . NO LEGITIMATE EXPECTATION CAN THEREFORE HAVE BEEN AROUSED BY SUCH A PROMISE , EVEN IF ONE WAS MADE .
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29. Furthermore, the Court has already held that once the Community has, pursuant to Article 40 of the EC Treaty, adopted legislation establishing an organisation of the market in a given sector, the Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it (Case 111/76 Van den Hazel [1977] ECR 901, paragraph 13, and Case C-44/94 Fishermen's Organisations and Others [1995] ECR I-3115, paragraph 52).
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13 ONCE THE COMMUNITY HAS , PURSUANT TO ARTICLE 40 OF THE TREATY , LEGISLATED FOR THE ESTABLISHMENT OF THE COMMON ORGANIZATION OF THE MARKET IN A GIVEN SECTOR , MEMBER STATES ARE UNDER AN OBLIGATION TO REFRAIN FROM TAKING ANY MEASURE WHICH MIGHT UNDERMINE OR CREATE EXCEPTIONS TO IT .
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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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35 The first point to be borne in mind here is the need to ensure legal certainty, which means that rules must enable those concerned to know precisely the extent of the obligations which they impose on them (see, to that effect, Case 348/85 Denmark v Commission [1987] ECR 5225, paragraph 19). The Commission thus cannot choose, at the time of the clearance of EAGGF accounts, an interpretation which departs from and is not dictated by the normal meaning of the words used (see, to that effect, Case 349/85 Denmark v Commission [1988] ECR 169, paragraphs 15 and 16).
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19 FURTHERMORE, AS THE COURT HAS DECIDED ON NUMEROUS OCCASIONS, COMMUNITY LEGISLATION MUST BE CERTAIN AND ITS APPLICATION MUST BE FORESEEABLE BY THOSE SUBJECT TO IT . THAT REQUIREMENT OF LEGAL CERTAINTY MUST BE OBSERVED ALL THE MORE STRICTLY IN THE CASE OF RULES LIABLE TO ENTAIL FINANCIAL CONSEQUENCES, IN ORDER THAT THOSE CONCERNED MAY KNOW PRECISELY THE EXTENT OF THE OBLIGATIONS WHICH THEY IMPOSE ON THEM .
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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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22. The Protocol thus makes a clear distinction between income of national origin which falls within the authority of the national tax administrations of the Member States, on the one hand, and income paid by the Union to its officials and other staff, which is exclusively subject to the law of the Union as regards its taxation, on the other. This division of reciprocal fiscal jurisdiction must exclude any taxation, direct or indirect, of income which is not within the jurisdiction of the Member States ( Humblet v Belgian State , 578; Case 260/86 Commission v Belgium [1988] ECR 955, paragraph 10; Case C-333/88 Tither [1990] ECR I-1133, paragraph 12, and Case C-229/98 Vander Zwalmen and Massart [1999] ECR I-7113, paragraph 21).
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12 As regards the interpretation of that provision in relation to financial arrangements such as the scheme at issue in the present case, the judgment of the Court of 24 February 1988 in Case 260/86 Commission v Belgium (( 1988 )) ECR 955 should be borne in mind . In that judgment, the Court held that Article 13 of the Protocol provides for an exemption from all direct and indirect national taxes on the salaries, wages and emoluments in question, and that it precludes any national tax, regardless of its nature and the manner in which it is levied, which is imposed directly or indirectly on officials or other servants of the Communities by reason of the fact that they are in receipt of remuneration paid by the Communities, even if the tax in question is not calculated by reference to the amount of that remuneration .
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36. The obligation of transparency to be complied with by public authorities concluding service concession contracts consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to allow the service concession to be opened up to competition and the impartiality of the award procedures to be reviewed (see Telaustria and Telefonadress , paragraphs 60 to 62; Parking Brixen , paragraphs 46 to 49; and ANAV , paragraph 21).
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38
Further, it must be recalled that, in accordance with the Court’s settled case-law, Article 107(1) TFEU covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the State. Therefore, even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ (see judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 37; of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 70; of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 35; and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 21).
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37 Second, it should be recalled that it has already been established in the case-law of the Court that Article 87(1) EC covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Therefore, even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources (see the judgment in Case C-83/98 P France v Ladbroke Racing and Commission [2000] ECR I-3271, paragraph 50).
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52. Or, ainsi que la Cour a eu l’occasion de le préciser, les articles 3, paragraphe 2, et 23, paragraphe 1, de la directive 2003/55 ne s’opposaient pas à une réglementation nationale qui permettait de déterminer le niveau du prix de fourniture du gaz naturel par la définition de prix de référence, après le 1 er juillet 2007, à condition que cette intervention:
– poursuive un intérêt économique général consistant à maintenir le prix de fourniture du gaz naturel au consommateur final à un niveau raisonnable eu égard à la conciliation qu’il appartenait aux États membres d’opérer, en tenant compte de la situation du secteur du gaz naturel, entre l’objectif de libéralisation et celui de la nécessaire protection du consommateur final poursuivis par la directive 2003/55;
– ne porte atteinte à la libre fixation des prix de fourniture du gaz naturel après le 1 er juillet 2007 que dans la seule mesure nécessaire à la réalisation d’un tel objectif d’intérêt économique général et, par conséquent, durant une période nécessairement limitée dans le temps, et
– soit clairement définie, transparente, non discriminatoire et contrôlable, et garantisse aux entreprises de gaz de l’Union un égal accès aux consommateurs (voir arrêt Federutility e.a., C‑265/08, EU:C:2010:205, point 47).
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31. However, the contested provisions do not concern the characteristics of the medicinal products, but concern solely the arrangements permitting their sale (see, to that effect, Case C‑244/06 Dynamic Medien [2008] ECR I‑0000, paragraph 31). Consequently, they must be regarded as concerning selling arrangements within the meaning of Keck and Mithouard , which is moreover not disputed by the parties to these proceedings.
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31. It is clear from paragraph 15 of the judgment in Case C‑391/92 Commission v Greece [1995] ECR I-1621 that rules which restrict the marketing of products to certain points of sale, and which have the effect of limiting the commercial freedom of economic operators, without affecting the actual characteristics of the products referred to, constitute a selling arrangement for the purposes of the case-law cited in paragraph 29 of this judgment. Therefore, the need to adapt the products in question to the rules in force in the Member State in which they are marketed prevents the abovementioned requirements from being treated as selling arrangements (see Canal Satélite Digital , paragraph 30). That is the case, inter alia, with regard to the need to alter the labelling of imported products (see, inter alia, Case C‑33/97 Colim [1999] ECR I‑3175, paragraph 37, and Case C‑416/00 Morellato [2003] ECR I‑9343, paragraphs 29 and 30).
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62. It would, however, be contrary to the principle of effectiveness to oblige injured parties to have recourse systematically to all the legal remedies available to them even if that would give rise to excessive difficulties or could not reasonably be required of them.
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60. An order imposing a penalty payment and/or a lump sum is not intended to compensate for damage which may have been caused by the Member State concerned, but to place it under economic pressure which induces it to put an end to the infringement that has been established. The financial penalties imposed must therefore be decided on according to the degree of persuasion needed for the Member State in question to alter its conduct (Case C‑304/02 Commission v France , paragraph 91).
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91. The argument that, in departing from or going beyond the Commission’s suggestions, the Court infringes a general principle of procedural law which prohibits courts from going beyond the parties’ claims is not well founded either. The procedure provided for in Article 228(2) EC is a special judicial procedure, peculiar to Community law, which cannot be equated with a civil procedure. The order imposing a penalty payment and/or a lump sum is not intended to compensate for damage caused by the Member State concerned, but to place it under economic pressure which induces it to put an end to the breach established. The financial penalties imposed must therefore be decided upon according to the degree of persuasion needed in order for the Member State in question to alter its conduct.
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113. Fifthly, the fact that authentic instruments transferring immovable property rights are registered in the registry of charges over land is not directly relevant to the outcome of the present dispute. That registration, which is moreover the responsibility of the registrar of charges, relates to measures for the publicity of those documents and does not therefore reflect the direct and specific exercise of official authority on the part of the notary.
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22. It must also be recalled that the provisions of Regulation No 44/2001 must be interpreted independently, by reference to its scheme and purpose (see, inter alia, Case C‑189/08 Zuid‑Chemie [2009] ECR I‑6917, paragraph 17 and the case-law cited, and Joined Cases C-509/09 and C-161/10 eDate Advertising and Others [2011] ECR I-0000, paragraph 38).
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17. In order to answer that question, it should be borne in mind, first, that, according to settled case-law, the provisions of Regulation No 44/2001 must be interpreted independently, by reference to its scheme and purpose (see, inter alia, Case C‑372/07 Hassett and Doherty [2008] ECR I-0000, paragraph 17, and Case C‑167/08 Draka NK Cables and Others [2009] ECR I-0000, paragraph 19).
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27. In addition, at paragraphs 48 and 49 of the judgment in Commission v Germany , cited above, the Court held, in relation to the exemption provided for in Article 13A(1)(i) of the Sixth Directive concerning the supply of services ‘closely related’ to university education, that the carrying out of research projects for consideration, even though it may be regarded as of great assistance to university education, is not essential to attain its objective, that is, in particular, the teaching of students to enable them to pursue a professional activity, and that, accordingly, it could not benefit from that exemption.
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24. As the Court has already held, although the introductory sentence of Article 13A(1) of the Sixth Directive states that Member States are to lay down the conditions for exemptions in order to ensure the correct and straightforward application of the exemptions and to prevent any possible evasion, avoidance or abuse, those conditions cannot affect the definition of the subject-matter of the exemptions envisaged (Case C‑287/00 Commission v Germany [2002] ECR I‑5811, paragraph 50).
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50 In relation to the German Government's argument concerning the simplification of the payment of VAT, it should be recalled that, according to settled case-law, although the introductory sentence of Article 13(A)(1) of the Sixth Directive states that Member States are to lay down the conditions for exemptions in order to ensure the correct and straightforward application of the exemptions and to prevent any possible evasion, avoidance or abuse, those conditions cannot affect the definition of the subject-matter of the exemptions envisaged (see, in particular, Case C-124/96 Commission v Spain [1998] ECR I-2501, paragraphs 11 and 12, and Case C-76/99 Commission v France, cited above, paragraph 26).
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37 Professional secrecy entails not only establishing rules prohibiting disclosure of confidential information but also making it impossible for the authorities legally in possession of such information to use it, in the absence of an express provision allowing them to do so, for a reason other than that for which it was obtained.
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46. The Court has also stated in this respect that it is of no importance that the benefit in question is intended to provide a financial supplement, having regard to a person’s reliance on care, to a pension paid on a basis other than sickness (see Jauch , paragraph 28) or that the grant of the benefit is not necessarily linked to the provision of a sickness insurance benefit (see, to that effect, Hosse , paragraph 43). It is also irrelevant that a particular benefit, unlike the benefits at issue in some of the Court’s judgments in this field cited above, does not have the essential object of supplementing sickness insurance benefits (see, to that effect, Commission v Parliament and Council , paragraph 70).
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43. Moreover, as the Court observed in Jauch , the conditions for the grant of care allowance and the way in which it is financed cannot have the intention or the effect of changing the character of care allowance as analysed in the Molenaar and Jauch judgments. The fact that the grant of the benefit is not necessarily linked to payment of a sickness insurance benefit or a pension awarded on a basis other than sickness insurance cannot therefore change that analysis.
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63. Also, as regards the second objective relied upon, it is settled law that the restrictions imposed by Member States must satisfy the principle of proportionality and that national legislation is appropriate for achieving the objective invoked only if the means used are consistent and systematic ( Placanica and Others , paragraphs 48 and 53).
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61. In any event, the fact that the general supervisory board is not a decision‑making body, but a monitoring body, is not such as to undermine the position and influence of the public authorities concerned. While Portuguese company law assigns to the supervisory board the task of monitoring a company’s management, it confers significant powers on that body for the purpose of performing that task. Furthermore, as the Commission has pointed out, approval by the general supervisory board is necessary, under Article 17(2) of EDP’s articles of association, for a number of transactions, including, in addition to the acquisition and disposal of assets, rights or shares of significant monetary value, the opening or closure of places of business or significant parts of places of business, the establishment or termination of strategic partnerships or other forms of lasting cooperation, the division, merger or conversion of the company, and amendments of its articles of association, including a change of registered office and an increase in share capital (see, to that effect, Commission v Germany , paragraph 65).
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65. The fact that the supervisory board, as the Federal Republic of Germany submits, is not a decision-making body, but a simple monitoring body, is not such as to undermine the position and influence of the Federal and State authorities concerned. While German company law assigns to the supervisory board the task of monitoring the company’s management and of providing reports on that management to the shareholders, it confers significant powers on that body, such as the appointment and dismissal of the members of the executive board, for the purpose of performing that task. Furthermore, as the Commission has pointed out, approval by the supervisory board is necessary for a number of transactions, including, in addition to the setting-up and transfer of production facilities, the establishment of branches, the sale and purchase of land, investments and the acquisition of other undertakings.
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26. Regarding, more specifically, the detailed procedural rules governing actions for damages arising from infringement of the competition rules, it is for the Member States to establish and apply national rules on the right of access, by persons believing themselves to be adversely affected by a cartel, to documents relating to national proceedings concerning that cartel (see, to that effect, Pfleiderer , paragraph 23).
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22. With regard more particularly to the lack of details in the application as regards the breakdown of the amount of unrecovered aid, it must be borne in mind that, where compliance with decisions relating to aid schemes is concerned, it is for the authorities of the Member State involved to verify the individual situation of each undertaking concerned (see, to that effect, Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ and Others v Commission EU:C:2011:368, paragraphs 63, 64 and 121, and Case C‑613/11 Commission v Italy EU:C:2013:192, paragraph 40), given that those authorities are in the best position to determine the exact amounts to be repaid (Case C‑441/06 Commission v France EU:C:2007:616, paragraph 39). It follows therefrom that the Commission may, during an aid recovery proceeding, merely insist that the obligation to repay the amounts of aid at issue be fulfilled and leave the national authorities to calculate the exact amount of the sums to be recovered (see, to that effect, Case C‑369/07 Commission v Greece EU:C:2009:428, paragraph 49).
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64. The assessments by the General Court appearing in paragraphs 104 to 106 of the judgment under appeal thus fail to take account of the case-law according to which, where the Commission rules in a general and abstract way on a scheme of State aids, which it declares incompatible with the common market ordering recovery of the amounts received under that scheme, it is for the Member State to verify the individual situation of each undertaking concerned by such a recovery operation.
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86. In that connection, it should be noted that, pursuant to Article 17(1) of the basic regulation, samples of parties, products or transactions must be statistically valid on the basis of information available at the time of the selection, or contain the largest volume of production, sales or exports which can reasonably be investigated within the time available.
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49. It should be borne in mind that, according to well-established case-law, national measures which are liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the FEU Treaty may nevertheless be allowed provided that they pursue an objective in the public interest, are appropriate for attaining that objective and do not go beyond what is necessary to attain the objective pursued (see, inter alia, Woningstichting Sint Servatius , paragraph 25, and Commission v Hungary , paragraph 69).
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69. Ac cording to well-established case-law, national measures which are liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty may nevertheless be allowed provided that they pursue an objective in the public interest, are appropriate for attaining that objective and do not go beyond what is necessary to attain the objective pursued (see, in particular, Commission v Greece , paragraph 51).
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41
Finally, with regard to the purpose of Article 5(1) of Directive 2008/95, it is clear from that provision that it is intended to provide the proprietor with a legal instrument allowing him to prohibit, and to prevent, any use of his trade mark by a third party without his consent. However, only a third party who has direct or indirect control of the act constituting the use is effectively able to stop that use and therefore comply with that prohibition.
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45. On the other hand, the fact that an agreement, decision or concerted practice relates only to the marketing of products in a single Member State is not sufficient to exclude the possibility that trade between Member States might be affected (see Case 246/86 Belasco and Others v Commission [1989] ECR 1-2117, paragraph 33). An agreement, decision or concerted practice extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29, Remia and Others v Commission , cited above, paragraph 22, and Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraph 48).
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22 TAKING FIRST THE CONDITION WITH REGARD TO THE EFFECT ON TRADE BETWEEN MEMBER STATES , THE COURT WOULD POINT OUT THAT , AS IT HAS CONSISTENTLY HELD , IN ORDER THAT AN AGREEMENT BETWEEN UNDERTAKINGS MAY AFFECT TRADE BETWEEN MEMBER STATES IT MUST BE POSSIBLE TO FORESEE WITH A SUFFICIENT DEGREE OF PROBABILITY ON THE BASIS OF A SET OF OBJECTIVE FACTORS OF LAW OR FACT THAT IT MAY HAVE AN INFLUENCE , DIRECT OR INDIRECT , ACTUAL OR POTENTIAL , ON THE PATTERN OF TRADE BETWEEN MEMBER STATES , SUCH AS MIGHT PREJUDICE THE REALIZATION OF THE AIM OF A SINGLE MARKET IN ALL THE MEMBER STATES . THE COURT HAS ALSO HELD ( JUDGMENT OF 17 OCTOBER 1972 IN CASE 8/72 , CEMENTHANDELAREN , ( 1972 ) ECR 977 ) THAT AN AGREEMENT OR PRACTICE RESTRICTING COMPETITION AND EXTENDING OVER THE WHOLE TERRITORY OF A MEMBER STATE BY ITS VERY NATURE HAS THE EFFECT OF REINFORCING THE COMPARTMENTALIZATION OF MARKETS ON A NATIONAL BASIS , THEREBY HOLDING UP THE ECONOMIC INTERPENETRATION WHICH THE TREATY IS INTENDED TO BRING ABOUT .
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109. Il y a lieu de constater que les décisions 2010/413 et 2010/644 sont fondées sur l’article 29 TUE, que le règlement d’exécution n o 668/2010 est fondé sur l’article 291, paragraphe 2, TFUE et le règlement n o 423/2007, et que le règlement n o 961/2010 est fondé sur l’article 215 TFUE. Ces dispositions des traités donnaient au Conseil la compétence pour adopter les actes litigieux, contenant des mesures restrictives autonomes, distinctes de mesures recommandées spécifiquement par le Conseil de sécurité.
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38. In the case of companies, their registered office for the purposes of Article 48 EC serves, in the same way as nationality in the case of individuals, as the connecting factor with the legal system of a Member State. Acceptance of the proposition that the Member State of residence may freely apply different treatment merely by reason of the fact that the registered office of a company is situated in another Member State would deprive Article 43 EC of all meaning. Freedom of establishment thus aims to guarantee the benefit of national treatment in the host Member State, by prohibiting any discrimination based on the place in which companies have their seat (see Test Claimants in Class IV of the ACT Group Litigation , paragraph 43; Denkavit Internationaal and Denkavit France , paragraph 22; Burda , paragraph 77; and Case C‑282/07 Truck Center [2008] ECR I‑0000, paragraph 32).
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77. In the case of companies, it should be borne in mind that their registered office for the purposes of Article 58 of the Treaty serves, in the same way as nationality in the case of individuals, as the connecting factor with the legal system of a Member State. Acceptance of the proposition that the Member State of residence may freely apply different treatment merely by reason of the fact that the registered office of a company is situated in another Member State would deprive Article 52 of the Treaty of all meaning. Freedom of establishment thus aims to guarantee the benefit of national treatment in the host Member State, by prohibiting any discrimination based on the place in which companies have their seat (see, inter alia, to that effect, Test Claimants in Class IV of the ACT Group Litigation , paragraph 43 and the case-law cited therein).
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106 Moreover, the importance of the social function attributed to supplementary pensions has recently been recognised by the Community legislature's adoption of Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community (OJ 1998 L 209, p. 46).
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31. It must be observed in that regard that, under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case pending before it both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, to that effect, in particular, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59; Case C‑454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 37; and Case C‑97/09 Schmelz [2010] ECR I‑0000, paragraph 28).
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37 It is settled case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, in particular, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59; Case C-200/97 Ecotrade v AFS [1998] ECR I-7907, paragraph 25; and Case C-254/98 Schutzverband gegen unlauteren Wettbewerb v TK-Heimdienst Sass [2000] ECR I-151, paragraph 13).
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63. From this angle, the Framework Agreement seeks to place limits on successive recourse to the latter category of employment relationship, a category regarded as a potential source of abuse to the disadvantage of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure.
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47. In addition, according to settled case-law, medical services supplied for consideration fall within the scope of the provisions of the FEU Treaty on the freedom to provide services, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (see, in particular, Smits and Peerbooms , paragraph 53, and Commission v France , paragraph 30).
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30. According to settled case-law, medical services supplied for consideration fall within the scope of those provisions, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (see, in particular, Case C‑8/02 Leichtle [2004] ECR I‑2641, paragraph 28; Watts , paragraph 86; and Case C‑444/05 Stamatelaki [2007] ECR I‑3185, paragraph 19).
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11 Furthermore, the possibility that nationals of other Member States would hesitate to sell goods on instalment terms to purchasers in the Member State concerned because such goods would be liable to seizure by the collector of taxes if the purchasers failed to discharge their Netherlands tax debts is too uncertain and indirect to warrant the conclusion that a national provision authorizing such seizure is liable to hinder trade between Member States .
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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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111 It follows from those provisions, taken together, that Regulation No 2409/92 has, indirectly but definitely, prohibited air carriers of non-member countries which operate in the Community from introducing new products or fares lower than the ones existing for identical products. By proceeding in that way, the Community legislature has limited the freedom of those carriers to set fares and rates, where they operate on intra-Community routes by virtue of the fifth-freedom rights which they enjoy. Accordingly, to the extent indicated in Article 1(3) of Regulation No 2409/92, the Community has acquired exclusive competence to enter into commitments with non-member countries relating to that limitation on the freedom of non-Community carriers to set fares and rates.
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47. According to the Cypriot Government, confirmation for the interpretation that the decisive criterion conferring entitlement to parental leave is the child and not the birth is found in Case C-519/03 Commission v Luxembourg [2005] ECR I-3067, paragraph 47, in which the Court held that the wording that parental leave is conferred ‘on the grounds of the birth’ of a child reflects only the fact that the grant of parental leave is subject to the condition that a child has been born.
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111. As a preliminary point, it must be observed that the seventh ground of appeal concerns whether the General Court was justified in rejecting the third plea put forward at first instance, set out in paragraph 133 et seq. of the application, which alleged an infringement of an essential procedural requirement in relation to the statement of reasons for measures, pursuant to Article 253 EC. The seventh ground of appeal concerns therefore the examination by the General Court of a plea relating to an alleged breach of the obligation to state reasons, which is a plea distinct from those concerning the substantive legality of a measure (see, to that effect, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraphs 66 and 67).
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67 It must, however, be remembered that these are distinct pleas, each of which may be raised in proceedings under Article 173 of the Treaty. The first, alleging absence of reasons or inadequacy of the reasons stated, goes to an issue of infringement of essential procedural requirements within the meaning of that article and, involving a matter of public policy, must be raised by the Community judicature of its own motion (see, in particular, Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 24). By contrast, the second, which goes to the substantive legality of the contested decision, is concerned with infringement of a rule of law relating to the application of the Treaty within the meaning of Article 173, and can be examined by the Community judicature only if it is raised by the applicant.
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49. Such an approach appears moreover to be fully justified by the circumstance that, in practice, it is not always possible for the competent authority to ascertain that the animals have actually suffered, or been injured, as a result of non‑compliance with those provisions.
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32. However, it is clear from settled case-law that national legislation which constitutes a measure having equivalent effect to quantitative restrictions can be justified on one of the grounds of public interest laid down in Article 36 TFEU or by imperative requirements. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it (see, in particular, Commission v Netherlands , paragraph 75; Commission v Poland , paragraph 46; and Case C‑421/09 Humanplasma [2010] ECR I‑0000, paragraph 34).
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46. Toutefois, il ressort d’une jurisprudence constante qu’une réglementation nationale qui constitue une mesure d’effet équivalent à des restrictions quantitatives peut être justifiée par l’une des raisons d’intérêt général énumérées à l’article 30 CE ou par des exigences impératives. Dans l’un et l’autre cas, la disposition nationale doit être propre à garantir la réalisation de l’objectif poursuivi et ne pas aller au-delà de ce qui est nécessaire pour qu’il soit atteint (voir, notamment, arrêts précités Commission/Finlande, point 38 et jurisprudence citée, ainsi que Commission/Pays-Bas, point 75 et jurisprudence citée).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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34. According to the Court’s settled case-law, neither the level of productivity of the individual concerned, nor the origin of the funds from which the remuneration is paid, nor even the limited amount of that remuneration can in any way whatsoever affect whether or not the person is a worker for the purposes of EU law (see judgments in Bettray , 344/87, EU:C:1989:226, paragraphs 15 and 16; Kurz , C‑188/00, EU:C:2002:694, paragraph 32; and Trojani , C‑456/02, EU:C:2004:488, paragraph 16).
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16 Nor can the person cease to be regarded as a worker merely by virtue of the fact that the employment relationship under the Social Employment Law is of a sui generis nature in national law . As the Court has held ( see, primarily, the judgment of 12 February 1974 in Case 152/73 Sotgiu v Deutsches Bundespost (( 1974 )) ECR 153 ), the nature of the legal relationship between the employee and the employer is of no consequence in regard to the application of Article 48 of the Treaty .
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17 A global assessment of the likelihood of confusion implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between these goods or services. Accordingly, a lesser degree of similarity between these goods or services may be offset by a greater degree of similarity between the marks, and vice versa. The interdependence of these factors is expressly mentioned in the tenth recital of the preamble to the Directive, which states that it is indispensable to give an interpretation of the concept of similarity in relation to the likelihood of confusion, the appreciation of which depends, in particular, on the recognition of the trade mark on the market and the degree of similarity between the mark and the sign and between the goods or services identified.
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41. Next, it follows from case-law that the meaning and scope of terms for which European Union law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they form part (see, inter alia, Case C‑336/03 easyCar [2005] ECR I‑1947, paragraph 21; Case C‑549/07 Wallentin‑Hermann [2008] ECR I‑11061, paragraph 17; Case C‑151/09 UGT‑FSP [2010] ECR I‑0000, paragraph 39; and Budějovický Budvar , paragraph 39).
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17. It is settled case‑law that the meaning and scope of terms for which Community law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. Moreover, when those terms appear in a provision which constitutes a derogation from a principle or, more specifically, from Community rules for the protection of consumers, they must be read so that that provision can be interpreted strictly (see, to that effect, Case C‑336/03 easyCar [2005] ECR I‑1947, paragraph 21 and the case‑law cited). Furthermore, the preamble to a Community measure may explain the latter’s content (see, to that effect, inter alia, Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 76).
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12 A CET EGARD, IL CONVIENT D' ADMETTRE, AINSI QUE LA COMMISSION L' A FAIT OBSERVER AVEC RAISON, QU' UN OPERATEUR AYANT LIBREMENT ARRETE SA PRODUCTION PENDANT UN CERTAIN TEMPS NE PEUT PAS LEGITIMEMENT S' ATTENDRE A POUVOIR REPRENDRE LA PRODUCTION DANS LES MEMES CONDITIONS QUE CELLES QUI PREVALAIENT AUPARAVANT, ET A NE PAS ETRE SOUMIS A D' EVENTUELLES REGLES, ENTRE-TEMPS ARRETEES, RELEVANT DE LA POLITIQUE DES MARCHES OU DE LA POLITIQUE DES STRUCTURES .
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56. As pointed out in paragraph 27 of this judgment, the aim of Directive 90/435 is to eliminate, by introducing a common system of taxation, any disadvantage to cooperation between companies of different Member States, as compared with cooperation between companies of the same Member State, and thereby to facilitate the grouping together of companies at Community level ( Banque Fédérative du Crédit Mutuel , paragraph 23, and Case C‑138/07 Cobelfret [2009] ECR I‑0000, paragraph 28).
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23. In that regard, it should be borne in mind that, as is particularly apparent from the third recital in the preamble thereto, the aim of the directive is to eliminate, by introducing a common system of taxation, any disadvantage to cooperation between companies of different Member States as compared with cooperation between companies of the same Member State and thereby to facilitate the grouping together of companies at Community level ( Denkavit and Others , paragraph 22; Epson Europe , paragraph 20; Case C‑294/99 Athinaiki Zithopiia [2001] ECR I‑6797, paragraph 25; Océ Van der Grinten , paragraph 45; and Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraph 103).
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53. Outre le fait qu’il s’agit d’un motif apparemment surabondant ne pouvant, selon une jurisprudence constante, entraîner l’annulation d’un arrêt rendu par le Tribunal (voir, notamment, arrêt Anheuser-Busch/Budějovický Budvar, C‑96/09 P, EU:C:2011:189, point 211), celui-ci ne saurait en aucun cas être compris dans un sens autre que celui, déjà exprimé au point 50 dudit arrêt, selon lequel la chambre de recours aurait dû prendre en considération la limitation telle que demandée par Kessel.
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21. Under the third paragraph of Article 249 EC, a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods for implementing the directive in question in domestic law. However, in accordance with settled case-law, while the transposition of a directive into domestic law does not necessarily require that the content of the directive be incorporated formally and verbatim in express, specific legislation and, depending on its content, a general legal context may be adequate for the purpose, that is on condition that that context does indeed guarantee the full application of the directive in a sufficiently clear and precise manner (see, inter alia, Case 363/85 Commission v Italy [1987] ECR 1733, paragraph 7, Case C-361/88 Commission v Germany [1991] ECR I‑2567, paragraph 15, and Case C-58/02 Commission v Spain [2004] ECR I‑621, paragraph 26).
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15 It should be borne in mind in that respect that, according to the case-law of the Court (see, in particular, the judgment in Case C-131/88 Commission v Germany [1991] ECR I-825), the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose, provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.
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70. Under Article 81(3) EC, it is the beneficial nature of the effect on all consumers in the relevant markets that must be taken into consideration, not the effect on each member of that category of consumers.
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18. With regard to the context of those provisions, which must inter alia be considered in order to interpret them (see, to that effect, Case C‑116/10 Feltgen and Bacino Charter Company [2010] ECR I‑0000, paragraph 12 and case-law cited), Article 5 of the regulation must be taken into account, as correctly stated by the applicants in the main proceedings, the Czech and Netherlands Governments and the European Commission.
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12. In that regard, it should be borne in mind that, according to the Court’s settled case‑law, in interpreting a provision of European Union law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, Case 292/82 Merck [1983] ECR 3781, paragraph 12; Case C-34/05 Schouten [2007] ECR I‑1687, paragraph 25; and Case C‑433/08 Yaesu Europe [2009] ECR I‑0000, paragraph 24).
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57
However, as also follows from the judgment of 16 March 2017, Veloserviss (C‑47/16, EU:C:2017:220), in so far as such a report contains only a general description of the situation at issue, which is to be determined by the referring court, that report cannot, on its own, suffice for the purposes of establishing whether those conditions are satisfied in all respects, in particular as regards the relevant conduct of the exporter or, where relevant, of the customs authorities of the exporting State (see, to that effect, judgment of 16 March 2017, Veloserviss, C‑47/16, EU:C:2017:220, paragraphs 49 and 50).
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40. In the case of companies, their ‘registered office’ for the purposes of Article 48 EC serves, in the same way as nationality in the case of individuals, as the connecting factor with the legal system of a Member State. Acceptance of the proposition that the Member State of establishment may freely apply different treatment merely by reason of the fact that the registered office of a company is situated in another Member State would deprive Article 43 EC of all meaning (see, to that effect, Case 270/83 Commission v France [1986] ECR 273, paragraph 18; Case C‑330/91 Commerzbank [1993] ECR I‑4017, paragraph 13; and Case C‑303/07 Aberdeen Property Fininvest Alpha [2009] ECR I‑0000, paragraph 38).
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18 IT MUST FIRST BE EMPHASIZED IN THAT REGARD THAT FREEDOM OF ESTABLISHMENT , WHICH ARTICLE 52 GRANTS TO NATIONALS OF ANOTHER MEMBER STATE AND WHICH ENTAILS THEIR RIGHT TO TAKE UP AND PURSUE ACTIVITIES AS SELF-EMPLOYED PERSONS UNDER THE CONDITIONS LAID DOWN FOR ITS OWN NATIONALS BY THE LAW OF THE COUNTRY WHERE SUCH ESTABLISHMENT IS EFFECTED , INCLUDES , PURSUANT TO ARTICLE 58 OF THE EEC TREATY , THE RIGHT OF COMPANIES OR FIRMS FORMED IN ACCORDANCE WITH THE LAW OF A MEMBER STATE AND HAVING THEIR REGISTERED OFFICE , CENTRAL ADMINISTRATION OR PRINCIPAL PLACE OF BUSINESS WITHIN THE COMMUNITY TO PURSUE THEIR ACTIVITIES IN THE MEMBER STATE CONCERNED THROUGH A BRANCH OR AGENCY . WITH REGARD TO COMPANIES , IT SHOULD BE NOTED IN THIS CONTEXT THAT IT IS THEIR REGISTERED OFFICE IN THE ABOVE-MENTIONED SENSE THAT SERVES AS THE CONNECTING FACTOR WITH THE LEGAL SYSTEM OF A PARTICULAR STATE , LIKE NATIONALITY IN THE CASE OF NATURAL PERSONS . ACCEPTANCE OF THE PROPOSITION THAT THE MEMBER STATE IN WHICH A COMPANY SEEKS TO ESTABLISH ITSELF MAY FREELY APPLY TO IT A DIFFERENT TREATMENT SOLELY BY REASON OF THE FACT THAT ITS REGISTERED OFFICE IS SITUATED IN ANOTHER MEMBER STATE WOULD THUS DEPRIVE THAT PROVISION OF ALL MEANING .
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54 It follows that it is for the trader alleging consent to prove it and not for the trade mark proprietor to demonstrate its absence.
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48. Thus the Court has ruled that periods in which a Turkish national was employed only as a result of fraudulent conduct which led to a conviction cannot be regarded as legal in respect of the application of Article 6(1) of Decision No 1/80, as the person concerned did not, in actual fact, satisfy the conditions laid down by that provision and did not therefore legally have a right under that decision (see Case C‑285/95 Kol [1997] ECR I-3069, paragraphs 26 and 27, and Case C‑37/98 Savas [2000] ECR I-2927, paragraph 61).
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26 Periods of employment after a residence permit has been obtained only by means of fraudulent conduct which has led to a conviction cannot be regarded as legal for the purposes of application of Article 6(1) of Decision No 1/80, since the Turkish national did not fulfil the conditions for the grant of such a permit which was, accordingly, liable to be rescinded when the fraud was discovered.
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68
It must be observed, in that regard, that, according to the Court’s settled case-law, the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions (judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 56 and the case-law cited).
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32
In that regard, while a mere finding of disparities between national rules is not sufficient to justify having recourse to Article 114 TFEU, it is otherwise where there are differences between the laws, regulations or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market (see, to that effect, judgments in Germany v Parliament and Council, C‑376/98, EU:C:2000:544, paragraphs 84 and 95; British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraphs 59 and 60; Arnold André, C‑434/02, EU:C:2004:800, paragraph 30; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 29; Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 37; and Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 32).
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95 It therefore necessary to verify whether the Directive actually contributes to eliminating obstacles to the free movement of goods and to the freedom to provide services, and to removing distortions of competition.
Elimination of obstacles to the free movement of goods and the freedom to provide services
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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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43. It is clear from the travaux préparatoires relating to Directive 2005/36, in particular the Council’s statement of reasons, cited in paragraph 33 of the present judgment, that the situations at issue in the judgments in Hocsman (C‑238/98, EU:C:2000:440) and Dreessen (C‑31/00, EU:C:2002:35) are, inter alia, the basis for the adoption of Article 10 of that directive. It follows that the ‘specific and exceptional reasons’, referred to in that article, may cover both the circumstances relating to institutional and structural obstacles resulting from the particular situation in the Member State concerned and circumstances related to the applicant’s personal situation.
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27 It follows that Member States must comply with their obligations as regards mutual recognition of professional qualifications arising from the Court's interpretation of Articles 43 EC and 47 EC (see, in particular, Vlassopoulou, Haim and Hocsman), in examining any application for authorisation to practise a profession, access to which depends, under national legislation, on the possession of a diploma or professional qualification or on periods of practical experience, where the diploma held by the Community national is not the subject of automatic recognition under a directive on the mutual recognition of diplomas, even if such a directive has been adopted in the professional field in question.
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59. In addition, it is important to note that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (see Case C‑399/08 P Commission v Deutsche Post [2010] ECR I-0000, paragraph 64 and case-law cited).
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24 In this respect, the Court has consistently held (judgment in Case 59/81 Commission v Council [1982] ECR 3329, at paragraph 32, and judgments in Case 158/79, at paragraph 28; Case 543/79, at paragraph 44; Joined Cases 532/79, 534/79, 567/79, 600/79, 618/79 and 660/79, at paragraph 44, all cited above) that the Council' s power under Article 65(2) of the Staff Regulations is to decide whether or not there has been a substantial increase in the cost of living and, if there has, to draw the appropriate conclusions.
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44 THAT ARGUMENT CANNOT BE UPHELD . IN FACT THE WORDING OF ARTICLE 65 ( 2 ) PRECLUDES ANY INTERPRETATION TO THE EFFECT THAT THE COUNCIL IS NOT OBLIGED TO ADJUST THE WEIGHTINGS WITHIN A PERIOD OF TWO MONTHS FOLLOWING ANY SUBSTANTIAL CHANGE IN THE COST OF LIVING . IT SHOULD BE REMEMBERED THAT THE COURT IN ITS JUDGMENT OF 6 OCTOBER 1982 IN CASE 59/81 COMMISSION V COUNCIL ( 1982 ) ECR 3329 HELD THAT THE COUNCIL ' S POWER IN THIS RESPECT WAS TO DECIDE WHETHER OR NOT THERE HAD BEEN A SUBSTANTIAL INCREASE IN THE COST OF LIVING AND , IF THERE HAD , TO DRAW THE APPROPRIATE CONCLUSIONS . ANY OTHER INTERPRETATION WOULD RUN COUNTER TO THE OBJECTIVE OF THE PROVISION IN QUESTION WHICH IS TO GUARANTEE TO ALL OFFICIALS THE SAME PURCHASING POWER WHATEVER THEIR PLACE OF EMPLOYMENT .
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37 The legislation in issue in the main proceedings applies irrespective of the nationality of the taxpayer concerned.
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46. Moreover, as Football Dataco and Others submit, the objective of protection of databases by the sui generis right pursued by Directive 96/9 would, in general, be compromised if acts of re-utilisation aimed at the public in all or part of the territory of the European Union were outside the scope of that directive and the national legislation transposing it, merely because the server of the website used by the person doing that act was located in a non-member country (see, by analogy, L’Oréal and Others , paragraph 63).
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63. It is sufficient to state in that regard that, under Article 5(3)(b) and (d) of Directive 89/104 and Article 9(2)(b) and (d) of Regulation No 40/94, the use by third parties of signs identical with or similar to trade marks which proprietors of those marks may prevent includes the use of such signs in offers for sale and advertising. As the Advocate General observed at point 127 of his Opinion and as the Commission pointed out in its written observations, the effectiveness of those rules would be undermined if they were not to apply to the use, in an internet offer for sale or advertisement targeted at consumers within the EU, of a sign identical with or similar to a trade mark registered in the EU merely because the third party behind that offer or advertisement is established in a third State, because the server of the internet site used by the third party is located in such a State or because the product that is the subject of the offer or the advertisement is located in a third State.
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34. More generally, the Court of Justice points out that, where the wording of a provision is unclear, account should be taken of the context of that provision and of the objectives which it pursues (see, to that effect, Case C‑149/11 Leno Merken [2012] ECR I‑0000, paragraph 39).
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29. In this respect, double taxation conventions such as those envisaged in Article 293 EC are designed to eliminate or mitigate the negative effects on the functioning of the internal market resulting from the coexistence of national tax systems referred to in the preceding paragraph ( Kerckhaert and Morres , paragraph 21, and Columbus Container Services , paragraph 43).
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21. It must be recalled, in that regard, that conventions preventing double taxation such as those envisaged in Article 293 EC are designed to eliminate or mitigate the negative effects on the functioning of the internal market resulting from the coexistence of national tax systems referred to in the preceding paragraph.
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73. Contrary to the appellants’ submissions, a prudent and alert economic operator, who is supposed to be familiar with that decision, could have inferred from that statement that the possibility of submitting an application, through automatic inclusion or reformulation under the detailed rules of the 1997-1999 aid scheme, pursuant to an invitation to apply which was subsequent to that under which the aid application had been lodged, was limited by the duration of the authorisation granted for that scheme.
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40. In order to ensure the effectiveness of the protection which Directive 93/13 is intended to provide, the Court has held on numerous occasions that such an imbalance may only be corrected by positive action unconnected with the actual parties to the contract ( Océano Grupo Editorial and Salvat Editores , paragraph 27; Mostaza Claro , paragraph 26; Asturcom Telecomunicaciones , paragraph 31; and the order in Pohotovost’ , paragraph 39).
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27 Moreover, as the Advocate General pointed out in paragraph 24 of his Opinion, the system of protection laid down by the Directive is based on the notion that the imbalance between the consumer and the seller or supplier may only be corrected by positive action unconnected with the actual parties to the contract. That is why Article 7 of the Directive, paragraph 1 of which requires Member States to implement adequate and effective means to prevent the continued use of unfair terms, specifies in paragraph 2 that those means are to include allowing authorised consumer associations to take action in order to obtain a decision as to whether contractual terms drawn up for general use are unfair and, if need be, to have them prohibited, even if they have not been used in specific contracts.
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Par conséquent, il appartient au premier chef aux autorités nationales de procéder aux vérifications nécessaires sur place, dans un esprit de coopération loyale, conformément au devoir de tout État membre, rappelé au point 21 du présent arrêt, de faciliter la mission générale de la Commission (arrêt du 26 avril 2007, Commission/Italie, C‑135/05, EU:C:2007:250, point 31 et jurisprudence citée).
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33. As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on the consumer. As is apparent from the case-law, that is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them ( Aziz , EU:C:2013:164, paragraph 45).
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45. As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on the consumer. As is apparent from the case-law, that is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (see Banco Español de Crédito , paragraph 40 and case-law cited).
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25 THE POINT TO BE MADE IN THIS REGARD IS THAT THE COMMISSION ADDRESSED ITS DECISION NOT TO THE MICHELIN GROUP AS A WHOLE BUT ONLY TO ITS NETHERLANDS SUBSIDIARY WHOSE ACTIVITIES ARE CONCENTRATED ON THE NETHERLANDS MARKET . IT HAS NOT BEEN DISPUTED THAT MICHELIN NV ' S MAIN COMPETITORS ALSO CARRY ON THEIR ACTIVITIES IN THE NETHERLANDS THROUGH NETHERLANDS SUBSIDIARIES OF THEIR RESPECTIVE GROUPS .
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102. On the contrary, it is precisely the existence of those Rules of Procedure, by which matters concerning the pleadings in question remain governed, and the fact that not only do they make no provision for a third-party right of access to the case-file but, in accordance with Article 31 of the Statute of the Court of Justice, they actually do provide that a hearing may be heard in camera or that certain information, such as the names of parties, may be kept confidential, which lend authority to the presumption that disclosure of those pleadings would undermine court proceedings (see, by analogy, Commission v Technische Glaswerke Ilmenau , paragraphs 56 to 58).
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56. Regulation No 659/1999, and, in particular, Article 20 thereof, do not lay down any right of access to documents in the Commission’s administrative file for interested parties in the context of the review procedure opened in accordance with Article 88(2) EC.
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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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