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50. It has consistently been held that if a prior administrative authorisation scheme is to be justified, even though it derogates from a fundamental freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the authorities’ discretion so that it is not used arbitrarily (Case C‑389/05 Commission v France [2008] ECR I‑5397, paragraph 94, and Case C‑169/07 Hartlauer [2009] ECR I‑1721, paragraph 64). Furthermore, any person affected by a restrictive measure based on such a derogation must have a judicial remedy available to them (see, to that effect, Case C‑205/99 Analir and Others [2001] ECR I‑1271, paragraph 38).
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38 Therefore, if a prior administrative authorisation scheme is to be justified even though it derogates from a fundamental freedom, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily. Accordingly, the nature and the scope of the public service obligations to be imposed by means of a prior administrative authorisation scheme must be specified in advance to the undertakings concerned. Furthermore, all persons affected by a restrictive measure based on such a derogation must have a legal remedy available to them.
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22 It should be noted in that respect that, pursuant to Article 234 EC, where a question on the interpretation of the Treaty or of subordinate acts of the institutions of the Community is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon (see, in particular, Case C-412/93 Leclerc-Siplec [1995] ECR I-179, paragraph 9).
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66. That said, the Court’s interpretation of Regulation No 1408/71 in response to the first question submitted for a preliminary ruling must be understood without prejudice to the solution which flows from the potential applicability of provisions of primary law (see, by way of analogy, Acereda Herrera , cited above, paragraph 38). The finding that a national measure may be consistent with a provision of a secondary law measure, in this case Regulation No 1408/71, does not necessarily have the effect of removing that measure from the scope of the Treaty’s provisions (see, to that effect, Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 25, and Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 47). It follows that the applicability, as the case may be, of Articles 19 or 22 of Regulation No 1408/71 to a situation such as that at issue in the main proceedings does not of itself prevent the person concerned from claiming, pursuant to primary law, the payment of certain costs relating to care received in a care home situated in another Member State, under rules different to those provided for in those articles (see, by analogy, Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraphs 37 to 53, along with Watts , cited above, paragraph 48).
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40 It should be borne in mind first of all that, under Article 60 of the Treaty, services for the purposes of the Treaty are services normally provided for remuneration in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
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33. The Court has inferred from this, first, that, in order for eligible customers to be able freely to choose their suppliers, it is necessary that suppliers should have the right to access the transmission and distribution systems which carry electricity to customers and, second, that open third party access to transmission and distribution systems constitutes one of the essential measures which the Member States are required to implement in order to bring about completion of the internal market in electricity (see citiworks , paragraphs 43 and 44).
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37. According to the case-law of the Court, the status of taxable person is not achieved and the right to deduct may not be exercised until the person seeking to deduct the VAT has established that the relevant conditions are fulfilled and that his intention to commence the economic activities giving rise to taxable transactions is confirmed by objective evidence. If the tax authorities were to conclude that the right to deduct has been exercised fraudulently or abusively, they would be entitled to demand, with retrospective effect, repayment of the amounts deducted (see, inter alia, Rompelman , paragraph 24; INZO , paragraph 24; and Case C‑32/03 Fini H [2005] ECR I‑1599, paragraph 33).
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33. If the tax authorities were to conclude that the right to deduct has been exercised fraudulently or abusively, they would be entitled to demand, with retrospective effect, repayment of the amounts deducted (see, inter alia, Rompelman , paragraph 24; INZO , paragraph 24; and Gabalfrisa , paragraph 46).
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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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18. In the absence of a Treaty definition of ‘movement of capital’ within the meaning of Article 56(1) EC, the Court has previously recognised the nomenclature set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [article repealed by the Treaty of Amsterdam] (OJ 1988 L 178, p. 5) as having indicative value. Movements of capital within the meaning of Article 56(1) EC therefore include direct investments, that is to say, as that nomenclature and the related explanatory notes show, investments of any kind undertaken by natural or legal persons and 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 (see, to that effect, Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraphs 179 to 181, and Case C‑157/05 Holböck [2007] ECR I‑0000, paragraphs 33 and 34). As regards shareholdings in new or existing undertakings, as those explanatory notes confirm, the objective of establishing or maintaining lasting economic links presupposes that the shares held by the shareholder enable him, either pursuant to the provisions of the national laws relating to companies limited by shares or in some other way, to participate effectively in the management of that company or in its control (see Test Claimants in the FII Group Litigation , paragraph 182, and Holböck , paragraph 35; see also C‑367/98 Commission v Portugal [2002] ECR I‑4731, paragraph 38; Case C‑483/99 Commission v France [2002] ECR I‑4781, paragraph 37; Case C‑503/99 Commission v Belgium [2002] ECR I‑4809, paragraph 38; Case C‑463/00 Commission v Spain [2003] ECR I‑4581, paragraph 53; Case C‑98/01 Commission v United Kingdom [2003] ECR I‑4641, paragraph 40; Case C‑174/04 Commission v Italy [2005] ECR I‑4933, paragraph 28; and Commission v Netherlands , paragraph 19).
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38 Points I and III in the nomenclature set out in Annex I to Directive 88/361, and the explanatory notes appearing in that annex, indicate that direct investment in the form of participation in an undertaking by means of a shareholding or the acquisition of securities on the capital market constitute capital movements within the meaning of Article 73b of the Treaty. The explanatory notes state that direct investment is characterised, in particular, by the possibility of participating effectively in the management of a company or in its control.
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34. In that regard, it must be borne in mind that the principle that national law must be interpreted in conformity with EU law also requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that EU law is fully effective and to achieving an outcome consistent with the objective pursued by it (see, to that effect, judgment in Dominguez , C‑282/10, EU:C:2012:33, paragraph 27 and the case-law cited).
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86. In the main actions, the disputes do not concern the actual cover provided by the Netherlands sickness insurance scheme for the medical and hospital treatment with which Ms Müller-Fauré and Ms Van Riet were provided. In those actions, what is disputed is whether it was a medical necessity for them to have the treatment at issue in Germany and Belgium respectively, rather than in the Netherlands. In that regard, in paragraphs 99 to 107 of Smits and Peerbooms , the Court also ruled on that condition concerning the necessity of the proposed treatment, to which the grant of authorisation is subject.
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100 As the national court states, it follows from the wording of Article 9(4) of the ZFW and Article 1 of the Rhbz that in principle that condition applies irrespective whether the request for authorisation relates to treatment in an establishment located in the Netherlands with which the sickness insurance fund has no contractual arrangements or in an establishment located in another Member State.
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38. En outre, il incombe aux juridictions nationales d’examiner si les États membres, en imposant de telles conditions, n’ont pas méconnu les limites de leur pouvoir d’appréciation en respectant les principes du droit de l’Union, en particulier le principe d’égalité de traitement, lequel se traduit, en matière de TVA, par le principe de neutralité fiscale (voir, en ce sens, arrêts précités Kingscrest Associates et Montecello, point 52, ainsi que L.u.P., point 48).
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36. It must be borne in mind in this regard that, in accordance with the settled case-law of the Court, in the context of the cooperation between the Court and the national courts provided for in 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 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, in particular, judgments in Kamberaj , C‑571/10, EU:C:2012:233, paragraph 40 and the case-law cited, and Gauweiler and Others , C‑62/14, EU:C:2015:400, paragraph 24).
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24. In the first place, as regards the argument that the dispute in the main proceedings is contrived and artificial and that the questions referred are hypothetical, it should be observed that, as is apparent from paragraph 15 of this judgment, 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 concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (see, to that effect, judgment in Melloni , C‑399/11, EU:C:2013:107, paragraph 28 and the case-law cited).
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32. It follows that the rolls of tobacco in question are slipped into the cigarette tubes by simple non-industrial handling. Accordingly, all the criteria set out in Article 4(1)(b) of Directive 95/59 are met.
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51. It is unnecessary to rule on the admissibility of this ground of appeal since it is clearly unfounded (see, by analogy, Joined Cases C‑465/09 P to C‑470/09 P Diputación Foral de Vizcaya and Others v Commission [2011] ECR I‑0000, paragraph 115).
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115. Sans qu’il ne soit nécessaire de statuer sur la recevabilité dudit moyen, il convient d’emblée de constater qu’il est inopérant.
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41. It should be noted that in this instance the pre-litigation procedure attained its objective of protecting the rights of the Member State in question. The Italian Republic had the opportunity to comply with its obligations under the Directive since, as its response to the reasoned opinion and its subsequent letter of 10 July 2003 attest, it informed the Commission of the point reached in the procedure for adoption of the legislation envisaged for that purpose. In addition, the Italian Republic had the opportunity, in the course of this procedural phase, to show that its domestic law in force complied with the requirements laid down by the Directive, even if it considered it unnecessary to avail itself of that opportunity in this instance (see, in this regard, Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 20).
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29. In addition, it is for the referring court to ensure compliance with the principle of legal certainty in the interpretation, in the light of a directive’s wording and purpose, of the national law adopted in order to implement it (see Joined Cases C‑74/95 and C‑129/95 X [1996] ECR I‑6609, paragraph 26).
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26 The national court must therefore ensure that that principle is observed when interpreting, in the light of the wording and the purpose of the Directive, the national legislation adopted in order to implement it.
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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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74 That requirement cannot, however, go so far as to make it necessary that the national provisions mentioned in the reasoned opinion and in the application should always be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application (judgments in Case 45/64 Commission v Italy [1965] ECR 857, Case C-42/89 Commission v Belgium [1990] ECR I-2821, and Case C-105/91 Commission v Greece, cited above, paragraph 13).
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13 On that point the Commission submits in the first place that the power conferred by Article 5 of the Decree of the Walloon Regional Executive on the minister responsible for local authorities, subsidized works and water, to authorize maximum permissible concentrations to be exceeded in the event of serious accidental circumstances or situations resulting from exceptional meteorological conditions, "in so far as the excess amount does not entail any unacceptable risk to public health and the network distribution cannot be assured in any other manner", is incompatible with Article 9(3 ) of the directive .
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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29. In the second place, it should be recalled that the holders of plant variety rights alone are responsible for the control and supervision of the use of the protected varieties in the context of authorised planting and they depend, therefore, on the good faith and cooperation of the farmers concerned (judgment in Geistbeck , C‑509/10, EU:C:2012:416, paragraph 42). Accordingly, the absence of a precisely defined period within which farmers are required to comply with the obligation to pay equitable remuneration by way of derogation is liable to encourage farmers to defer that payment indefinitely, in the hope of avoiding payment altogether. To allow farmers to avoid complying with their own obligations towards holders in such a way would be at odds with the objective set out in Article 2 of Regulation No 1768/95 of maintaining a reasonable balance between the legitimate interests of the farmers and the holders concerned.
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42. The incentive effect attaching to the concept of ‘reasonable compensation’ as provided for in Article 94 of Regulation No 2100/94 is all the more compelling in that, under the fifth indent of Article 14(3) of that regulation, the holders alone are responsible for the control and supervision of the use of the protected varieties in the context of the authorised planting and they depend, therefore, on the good faith and cooperation of the farmers concerned.
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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. The Court has ruled that the Member States are not empowered to maintain exclusions from the right to deduct VAT which apply in a general manner to any expenditure related to the acquisition of goods or services (see, to that effect, Case C‑74/08 PARAT Automotive Cabrio [2009] ECR I‑3459, paragraphs 28 and 29, and X Holding and Oracle Nederland , paragraph 44).
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44. It follows from the foregoing that the option given to Member States by the second subparagraph of Article 17(6) of the Sixth Directive presupposes that those Member States adequately define the nature or the purpose of the goods and services in respect of which the right to deduct is excluded in order to ensure that that option is not used to authorise general exclusions from that system (see, to that effect, PARAT Automotive Cabrio , paragraph 29).
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37 A titre liminaire, il convient de relever que, contrairement à ce que prétendent FCTL et Meatal, il n'y a pas lieu de distinguer la présente affaire de celle qui a été jugée par la Cour dans l'arrêt Anglo Irish Beef Processors International e.a., précité, ni en ce que la force majeure résulterait d'un acte communautaire ni en ce qu'il n'aurait pas existé d'autre marché pour la viande originaire du Royaume-Uni.
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30. As the Court has already held, the fact that the products are, to a certain extent, capable of meeting identical needs leads to the conclusion that there is a certain degree of substitution for one another (Case 170/78 Commission v United Kingdom [1980] ECR 417, paragraph 14, and Case 356/85 Commission v Belgium [1987] ECR 3299, paragraph 10).
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10 IN ITS JUDGMENTS OF 27 FEBRUARY 1980 AND 12 JULY 1983 ( CASE 170/78 COMMISSION V UNITED KINGDOM (( 1980 )) ECR 417 AND (( 1983 ))
ECR 2265 ), THE COURT HELD THAT WINE AND BEER WERE, TO A CERTAIN EXTENT, CAPABLE OF MEETING IDENTICAL NEEDS, SO THAT IT HAD TO BE ACKNOWLEDGED THAT THERE WAS A DEGREE OF SUBSTITUTION FOR ONE ANOTHER . THE COURT MADE IT CLEAR IN THOSE JUDGMENTS THAT IN VIEW OF THE SUBSTANTIAL DIFFERENCES IN THE QUALITY AND, THEREFORE, IN THE PRICE OF WINES, THE DECISIVE COMPETITIVE RELATIONSHIP BETWEEN BEER, A POPULAR AND WIDELY CONSUMED BEVERAGE, AND WINE MUST BE ESTABLISHED BY REFERENCE TO THOSE WINES WHICH ARE THE MOST ACCESSIBLE TO THE PUBLIC AT LARGE, THAT IS TO SAY, GENERALLY SPEAKING, THE LIGHTEST AND CHEAPEST VARIETIES, AND THAT THAT IS ACCORDINGLY THE APPROPRIATE BASIS FOR MAKING FISCAL COMPARISONS .
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14 Whilst it has thus been recognized that the term "place where the harmful event occurred" within the meaning of Article 5(3) of the Convention may cover both the place where the damage occurred and the place of the event giving rise to it, that term cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere.
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43. It is appropriate to point out, secondly, that according to the Court’s settled case‑law, the first paragraph of Article 24 of Directive 93/37 lists, exhaustively, the grounds capable of justifying the exclusion of a contractor from participation in a contract which relate solely to its professional qualities. Moreover, the Court also added that Member States have the right to provide, in addition to the grounds for exclusion expressly referred to in that provision, for grounds for exclusion designed to ensure observance of the principles of equal treatment and transparency (see, to that effect, Case C‑213/07 Michaniki [2008] ECR I‑9999, paragraphs 43, 44 and 47, and Case C‑538/07 Assitur [2009] ECR I‑4219, paragraphs 20 and 21).
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47. It follows that, in addition to the grounds for exclusion based on objective considerations of professional quality, which are listed exhaustively in the first paragraph of Article 24 of Directive 93/37, a Member State is entitled to provide for exclusionary measures designed to ensure observance, in procedures for the award of public contracts, of the principles of equal treatment of all tenderers and of transparency.
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12 The controls at issue are not a condition for the exercise of the right of entry into Belgian territory and it is undisputed that Community law does not prevent Belgium from checking, within its territory, compliance with the obligation imposed on persons enjoying a right of residence under Community law to carry their residence or establishment permit at all times, where an identical obligation is imposed upon Belgian nationals as regards their identity card .
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27. The Court held in Abbey National , paragraphs 26, 63 and 64, that not only investment management involving the selection and disposal of the assets under management but also administration and accounting services – such as computing the amount of income and the price of units or shares, the valuation of assets, accounting, the preparation of statements for the distribution of income, the provision of information and documentation for periodic accounts and for tax, statistical and VAT returns, and the preparation of income forecasts – fall within the concept of ‘management’ of a special investment fund. It is therefore not important that, as in the case in the main proceedings, it was for the IMC in question to implement the recommendations provided by GfBk to purchase and sell assets, after checking that they complied with investment limits.
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63. It follows that the transactions covered by that exemption are those which are specific to the business of undertakings for collective investment.
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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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42. Secondly, only Articles 6 and 11 of Directive 97/13 deal with the charges applicable to undertakings which hold authorisations in the telecommunications services sector (see, to that effect, Albacom and Infostrada , cited above, paragraph 26). As to individual licences, Article 11(1) of that directive provides that the fees imposed by the Member States on undertakings which hold those licences seek only to cover the administration costs generated by the work involved in implementing those licences ( Albacom and Infostrada , paragraph 25, and Joined Cases C-392/04 and C-422/04 i-21 Germany [2006] ECR I-8559, paragraph 28). The same consideration applies to the fees imposed by the Member States for general authorisations pursuant to Article 6 of Directive 97/13, which provides in addition for only one other form of financial contribution, namely contributions to the provision of universal service.
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25. Article 11(1) of Directive 97/13 provides that Member States are to ensure that any fees imposed on undertakings which hold individual licences seek only to cover the administration costs generated by the work involved in implementing those licences. Article 11(2) nevertheless allows the national regulatory authorities to impose charges where scarce resources are to be used.
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43. However, provided that the appellant challenges the interpretation or application of Community law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (Case C‑425/07 P AEPI v Commission [2009] ECR I-3205, paragraph 24).
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53. In order to determine whether two supplies of services are similar within the meaning of that case-law, account must primarily be taken of the point of view of a typical consumer, avoiding artificial distinctions based on insignificant differences (see The Rank Group , paragraph 43 and the case-law cited).
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43. In order to determine whether two supplies of services are similar within the meaning of the case-law cited in that paragraph, account must be taken of the point of view of a typical consumer (see, by analogy, Case C-349/96 CPP [1999] ECR I-973, paragraph 29), avoiding artificial distinctions based on insignificant differences (see, to that effect, Commission v Germany , paragraphs 22 and 23).
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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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41
Furthermore, the explanatory notes drawn up by the Commission as regards the CN and by the WCO as regards the HS are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see judgment of 17 February 2016, Salutas Pharma, C‑124/15, EU:C:2016:87, paragraph 31 and the case-law cited).
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31
Furthermore, the explanatory notes drawn up by the Commission as regards the CN and by the WCO as regards the HS are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see judgment in Data I/O, C‑297/13, EU:C:2014:331, paragraph 33 and case-law cited).
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11 MOREOVER , ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .
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103. In those circumstances, it is clear from Article 2(1) of Directive 85/337, as amended, that projects likely to have significant effects on the environment, as referred to in Article 4 of the directive read in conjunction with Annexes I and II thereto, must be made subject to an assessment with regard to their effects before (multi-stage) development consent is given (see, to that effect, Case C-201/02 Wells [2004] ECR I-723, paragraph 42).
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42. As to those submissions, under Article 2(1) of Directive 85/337 projects likely to have significant effects on the environment, as referred to in Article 4 of the directive read in conjunction with Annexes I and II thereto, must be made subject to an assessment with regard to such effects before consent is given.
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4 IT FOLLOWS THAT NATIONAL COURTS HAVE THE WIDEST DISCRETION IN REFERRING MATTERS TO THE COURT OF JUSTICE IF THEY CONSIDER THAT A CASE PENDING BEFORE THEM RAISES QUESTIONS INVOLVING INTERPRETATION, OR CONSIDERATION OF THE VALIDITY, OF PROVISIONS OF COMMUNITY LAW, NECESSITATING A DECISION ON THEIR PART .
IT FOLLOWS FROM THESE FACTORS THAT A RULE OF NATIONAL LAW WHEREBY A COURT IS BOUND ON POINTS OF LAW BY THE RULINGS OF A SUPERIOR COURT CANNOT DEPRIVE THE INFERIOR COURTS OF THEIR POWER TO REFER TO THE COURT QUESTIONS OF INTERPRETATION OF COMMUNITY LAW INVOLVING SUCH RULINGS .
IT WOULD BE OTHERWISE IF THE QUESTIONS PUT BY THE INFERIOR COURT WERE SUBSTANTIALLY THE SAME AS QUESTIONS ALREADY PUT BY THE SUPERIOR COURT .
ON THE OTHER HAND THE INFERIOR COURT MUST BE FREE, IF IT CONSIDERS THAT THE RULING ON LAW MADE BY THE SUPERIOR COURT COULD LEAD IT TO GIVE A JUDGMENT CONTRARY TO COMMUNITY LAW, TO REFER TO THE COURT QUESTIONS WHICH CONCERN IT .
IF INFERIOR COURTS WERE BOUND WITHOUT BEING ABLE TO REFER MATTERS TO THE COURT, THE JURISDICTION OF THE LATTER TO GIVE PRELIMINARY RULINGS AND THE APPLICATION OF COMMUNITY LAW AT ALL LEVELS OF THE JUDICIAL SYSTEMS OF THE MEMBER STATES WOULD BE COMPROMISED .
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61. It must be stated in that regard that, since the abovementioned provision has direct effect, it is binding on all the authorities of the Member States, that is to say, not merely the national courts but also all administrative bodies, including decentralised authorities such as Länder , cities and towns or communes, and those authorities are required to apply it (see, to that effect, Case 103/88 Costanzo [1989] ECR 1839, paragraphs 30 to 33).
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31 It would, moreover, be contradictory to rule that an individual may rely upon the provisions of a directive which fulfil the conditions defined above in proceedings before the national courts seeking an order against the administrative authorities, and yet to hold that those authorities are under no obligation to apply the provisions of the directive and refrain from applying provisions of national law which conflict with them . It follows that when the conditions under which the Court has held that individuals may rely on the provisions of a directive before the national courts are met, all organs of the administration, including decentralized authorities such as municipalities, are obliged to apply those provisions .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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32. In this context, where, after the entry into force of the Sixth Directive, the legislation of a Member State is amended in such a way as to reduce the scope of existing exclusions and thereby brings itself into line with the objective of the Sixth Directive, that legislation must be considered to be covered by the derogation provided for by the second subparagraph of Article 17(6) of the Sixth Directive and is not in breach of Article 17(2) thereof (Case C-345/99 Commission v France , paragraph 22, and Metropol and Stadler , paragraph 45).
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22 The same reasoning can be applied in the interpretation of Article 17(6) of the Sixth Directive. Thus, where the legislation of a Member State, after the entry into force of the Sixth Directive, is amended so as to reduce the scope of existing exemptions and thereby brings itself into line with the objective of the Sixth Directive, that legislation must be considered to be covered by the derogation provided for by the second subparagraph of Article 17(6) of the Sixth Directive and is not in breach of Article 17(2).
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90. First of all, it should be observed that the freedom of establishment of economic operators must be weighed against the imperative requirements of the protection of public health, and the seriousness of the objectives pursued in that domain may justify restrictions which have adverse consequences, and even substantial adverse consequences, for certain operators (see, to that effect, Case C-183/95 Affish [1997] ECR I-4315, paragraphs 42 and 43).
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24. In answering that question, it must be borne in mind that the Court has held that Directive 77/187, which has been codified by Directive 2001/23, is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the business who incurs the obligations of an employer towards employees of the undertaking (see judgments in Merckx and Neuhuys , C‑171/94 and C‑172/94, EU:C:1996:87, paragraph 28; Hernández Vidal and Others , C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:594, paragraph 23; and Amatori and Others , C‑458/12, EU:C:2014:124, paragraph 29 and the case-law cited).
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29. As a preliminary point, it must be recalled that Directive 2001/23 is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the business who incurs the obligations of an employer towards employees of the undertaking (see, Case C‑463/09 CLECE [2011] ECR I‑95, paragraph 30 and the case-law cited).
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19 In this regard, Member States may allow fishing vessels to fish against their national quotas only if certain conditions are fulfilled with regard to, for example, the size, age or state of the vessel, its equipment, the number of fishermen on board, accommodation and mess facilities for the crew, sanitary arrangements, safety matters and so forth, in so far as those conditions are not governed exclusively by Community legislation .
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29. The exclusive right under Article 5(1)(a) of Directive 89/104 was conferred in order to enable the trade mark proprietor to protect his specific interests as proprietor, that is, to ensure that the trade mark can fulfil its function. The exercise of that right must therefore be reserved to cases in which a third party’s use of the sign affects or is liable to affect the functions of the trade mark (see, inter alia, Case C-206/01 Arsenal Football Club [2002] ECR I-10273, paragraph 51; Case C‑487/07 L’Oréal and Others [2009] ECR I–0000, paragraph 58; and Google France and Google , paragraph 75).
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58. The Court has already held that the exclusive right under Article 5(1)(a) of Directive 89/104 was conferred in order to enable the trade mark proprietor to protect his specific interests as proprietor, that is, to ensure that the trade mark can fulfil its functions and that, therefore, the exercise of that right must be reserved to cases in which a third party’s use of the sign affects or is liable to affect the functions of the trade mark (Case C-206/01 Arsenal Football Club [2002] ECR I‑10273, paragraph 51; Case C‑245/02 Anheuser‑Busch [2004] ECR I‑10989, paragraph 59; and Case C-48/05 Adam Opel [2007] ECR I-1017, paragraph 21). These functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services, but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising.
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Il résulte de l’article 14, paragraphe 3, première phrase, du règlement no 659/1999 que la récupération d’une aide illégale déclarée incompatible avec le marché intérieur s’effectue « sans délai et conformément aux procédures prévues par le droit national de l’État membre concerné », pour autant que ces dernières permettent l’exécution immédiate et effective de la décision de la Commission. À cette fin, l’État membre concerné est tenu de prendre toutes les mesures prévues par leurs systèmes juridiques respectifs, sans préjudice du droit de l’Union (arrêt du 11 septembre 2014, Commission/Allemagne, C‑527/12, EU:C:2014:2193, point 38).
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33. It follows, moreover, from the Court’s case‑law that Articles 3(1) and 4(1) of the Directive, taken as a whole, define the general criteria permitting an assessment as to whether the contract terms subject to the provisions of the Directive are unfair (see, to that effect, Case C‑478/99 Commission v Sweden [2002] ECR I‑4147, paragraphs 11 and 17, and Case C‑237/02 Freiburger Kommunalbauten [2004] ECR I‑3403, paragraphs 18, 19 and 21).
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17 Article 3 of the Directive generally defines the factors that make a term unfair. Article 4 specifies that this unfairness is to be assessed taking into account the circumstances attending the conclusion of the contract. Article 5 lays down a requirement for clarity in the drafting of the terms offered to the consumer.
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12 That examination procedure must enable the authorities of the host Member State to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma. That assessment of the equivalence of the foreign diploma must be effected exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess in the light of that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates (see the judgment in UNECTEF v Heylens, cited above, paragraph 13).
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43. Thus, in order to determine whether a Turkish national who has entered the territory of a Member State lawfully may, after working for a year in that territory, rely on the rights conferred by Article 6(1) of Decision No 1/80, it must be determined whether he meets the objective conditions laid down in that provision, without it being necessary to take into account the reasons for which he was first granted the right to enter that territory or any temporal limitations attached to his right to work. According to settled case-law, it is not open to the national authorities to attach conditions to such rights or to restrict their application, as they would otherwise undermine the effect of Decision No 1/80 (see Günaydin , paragraphs 37 to 40, and 50; Birden , paragraph 19; Kurz , paragraph 26; Joined Cases C-317/01 and C-369/01 Abatay and Others [2003] ECR I‑12301, paragraph 78; and Sedef , paragraph 34).
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26 The first point to be noted in answering this question is that, since the judgment in Case C-192/89 Sevince [1990] ECR I-3461, at paragraph 26, the Court has consistently held that Article 6(1) of Decision No 1/80 has direct effect in the Member States and that Turkish nationals who satisfy its conditions may therefore rely directly on the rights which the three indents of that provision confer on them progressively, according to the duration of their employment in the host Member State (see, in particular, Case C-1/97 Birden [1998] ECR I-7747, paragraph 19).
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31. Il s’ensuit qu’une situation telle que celle en cause au principal ne relève pas du cadre général établi par l’article 2, paragraphe 2, de la directive 2000/78 en vue de lutter contre certaines discriminations.
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23. The restriction in question cannot moreover be justified by the need to ensure the coherence of the national tax system, which was established by the Court as an overriding requirement relating to the public interest (See Case C‑204/90 Bachmann [1992] ECR I‑249, paragraph 28, and Case C‑300/90 Commission v Belgium [1992] ECR I‑305, paragraph 21).
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28 In the light of the foregoing, it must be recognized that, in the field of pensions and life assurance, provisions such as those contained in the Belgian legislation at issue are justified by the need to ensure the cohesion of the tax system of which they form part, and that such provisions are not, therefore, contrary to Article 48 of the Treaty.
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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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11 Likewise, for the purpose of interpreting the Common Customs Tariff, the Court has consistently held that both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council are important means for ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (Case 200/84 Daiber v Hauptzollamt Reutlingen [1985] ECR 3363, paragraph 14, and Neckermann Versand, paragraph 5).
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5 It is 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 characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters (judgment in Case 40/88 Weber v Milchwerke Paderborn-Rimbeck [1989] ECR 1395, paragraph 13). Likewise, for the purpose of interpreting the Common Customs Tariff, the Court has consistently held that both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council are important means for ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (judgment in Case 200/84 Daiber v Hauptzollamt Reutlingen [1985] ECR 3363, paragraph 14).
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36. The importance of consumer protection has in particular led the Community legislature to lay down, in Article 6(1) of the Directive, that unfair terms used in a contract concluded with a consumer by a seller or supplier ‘shall … not be binding on the consumer’. This is a mandatory provision which, taking into account the weaker position of one of the parties to the contract, aims to replace the formal balance which the latter establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them.
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50
The special procedure governed by Regulation No 1896/2006 and the objectives which it pursues do not, however, apply where the debts giving rise to an order for payment are contested by way of a statement of opposition provided for in Article 16 of that regulation (see, to that effect, judgments in eco cosmetics and Raiffeisenbank St. Georgen, C‑119/13 and C‑120/13, EU:C:2014:2144, paragraph 39, and Goldbet Sportwetten, C‑144/12, EU:C:2013:393, paragraphs 31 and 42).
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31. However, where a defendant does not contest the jurisdiction of the court of the Member State of origin in his statement of opposition to the European order for payment, that opposition cannot produce, in regard to that defendant, effects other than those that flow from Article 17(1) of Regulation No 1896/2006. Those effects consist in the termination of the European order for payment procedure and in leading – unless the claimant has explicitly requested that the proceedings be terminated in that event – to the automatic transfer of the case to ordinary civil proceedings.
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41 Those arguments cannot be accepted.
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40. It is sufficient to recall in that respect that, where the Court has dealt in the past with cases in which the Community rules to be interpreted applied only by virtue of a reference made by domestic law, the Court has consistently held that where, in relation to purely internal situations, domestic legislation adopts solutions which are consistent with those adopted in Community law in order, in particular, to ensure a single procedure in comparable situations, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, to that effect, Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 37; Case C-130/95 Giloy [1997] ECR I-4291, paragraph 28; and Case C-300/01 Salzmann [2003] ECR I-4899, paragraph 34).
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34. Moreover, where, in relation to purely internal situations, domestic legislation adopts solutions which are consistent with those adopted in Community law in order, in particular, to avoid discrimination against foreign nationals, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see Case C-43/00 Andersen og Jensen [2002] ECR I-379, paragraph 18). In this case, the documents before the Court show that the Austrian courts consider that Austrian nationals may rely, when exercising the rights which they derive from the free movement of capital, on the equal treatment to which nationals of the Member States of the European Union and the EEA are entitled under Paragraph 3(1) of the VGVG.
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69. In cases where those assets have been sold separately, at the market price, the buyers are not required to repay the aid. Because of this separate sale, the subsidised activity disappears, which leaves scope for the beneficiary company’s competitors. In this way, the recovery of aid from the seller, whether it be from the beneficiary company itself or from the assets of the bankrupt or liquidated company, makes it possible to eliminate the distortion of competition.
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40 In Magill, the Court found such exceptional circumstances in the fact that the refusal in question concerned a product (information on the weekly schedules of certain television channels) the supply of which was indispensable for carrying on the business in question (the publishing of a general television guide), in that, without that information, the person wishing to produce such a guide would find it impossible to publish it and offer it for sale (paragraph 53), the fact that such refusal prevented the appearance of a new product for which there was a potential consumer demand (paragraph 54), the fact that it was not justified by objective considerations (paragraph 55), and that it was likely to exclude all competition in the secondary market of television guides (paragraph 56).
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56 Third, and finally, as the Court of First Instance also held, the appellants, by their conduct, reserved to themselves the secondary market of weekly television guides by excluding all competition on that market (see the judgment in Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223, paragraph 25) since they denied access to the basic information which is the raw material indispensable for the compilation of such a guide.
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34
However, it should be noted, first, according to recital 2 of that directive, the coordinating provisions which it establishes must be interpreted in accordance with the principles of the FEU Treaty, in particular the principles of the free movement of goods, freedom of establishment and freedom to provide services and the principles that derive therefrom, such as equality of treatment, non-discrimination, mutual recognition, proportionality and transparency to which the award of public contracts in Member States are subject.
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72 The Court has consistently held (see, inter alia, Case C-466/93 Atlanta Fruchthandelsgesellschaft and Others v Bundesamt fuer Ernaehrung und Forstwirtschaft [1995] ECR I-0000, paragraph 16) that the statement of reasons required by Article 190 of the EEC Treaty must be appropriate to the nature of the measure in question. The reasoning of the institution which adopted the measure must be stated clearly and unequivocally, so as to inform persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review.
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16 As regards the criticism by the national court of the lack of reasons for the rate of import duty adopted, the Court has consistently held that the statement of reasons required by Article 190 of the Treaty must be appropriate to the nature of the measure in question. The reasoning of the institution which adopted the measure must be stated clearly and unequivocally, so as to inform persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. It also follows from that case-law that the statement of reasons for a measure is not required to detail every relevant point of fact and law, as the question whether the statement of reasons satisfies the requirements of Article 190 of the Treaty must be considered with reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question. Consequently, if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution (see inter alia the judgments in Case 250/84 Eridania Zuccherifici Nazionali v Cassa Conguaglio Zucchero [1986] ECR 117, paragraphs 37 and 38, and, most recently, Case C-478/93 Netherlands v Commission [1995] ECR I-0000, paragraphs 48 and 49).
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43 SINCE 'ALL COMMERCIAL OPERATORS CANNOT HAVE AN ORGANIZATION WHICH ENABLES THEM TO TAKE PART IN OPEN TENDERS', CIP AUTHORIZED CCZ TO ALLOW NOT MORE THAN 1 000 METRIC TONS TO BE IMPORTED OUTSIDE THE INVITATIONS TO TENDER AND IN CONSIDERATION OF A REDUCED 'SOVRAPREZZO', PROVIDED THAT, IF THE TOTAL AMOUNT FOR WHICH APPLICATIONS WERE MADE IN THIS WAY EXCEEDED 10 000 METRIC TONS, THE QUANTITIES FOR WHICH EACH APPLICANT APPLIED WERE REDUCED IN PROPORTION .
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52
Nevertheless, it must be stated that the provisions of Article 6(2) and (3) of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by the directive and that those provisions are designed to ensure the same level of protection of natural habitats and habitats of species (see, to that effect, judgments in Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 32, and Briels and Others, C‑521/12, EU:C:2014:330, paragraph 19).
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32. In appraising the scope of the expression ‘adversely affect the integrity of the site’ in its overall context, it should be made clear that, as the Advocate General has noted in point 43 of her Opinion, the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by the directive. Indeed, Article 6(2) and Article 6(3) are designed to ensure the same level of protection of natural habitats and habitats of species (see, to this effect, Case C‑404/09 Commission v Spain [2011] ECR I‑0000, paragraph 142), whilst Article 6(4) merely derogates from the second sentence of Article 6(3).
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39. Therefore, contrary to what the referring court would appear to believe, in order to find that a concerted practice has an anti‑competitive object, there does not need to be a direct link between that practice and consumer prices.
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37
It should be recalled here, first, that the Court has repeatedly held that the right to deduction of VAT provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited, and that the right is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, to that effect, judgment of 13 February 2014, Maks Pen, C‑18/13, EU:C:2014:69, paragraph 24 and the case-law cited). The deduction system, as pointed out in paragraph 27 above, is meant to relieve the operator entirely of the burden of the VAT due or paid in the course of all his economic activities. However, national legislation, such as that at issue in the main proceedings, which applies interest for late payment on the amounts of VAT it considers to be due before correction of the invoice originally drawn up imposes a tax burden deriving from VAT on those economic activities, even though the common system of VAT guarantees the neutrality of that tax.
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24. In that regard, the Court has consistently held that the right of deduction provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited. In particular, the right of deduction is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see Bonik , paragraph 26 and the case-law cited).
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47 NEVERTHELESS IT IS EVIDENT FROM THE FOREGOING THAT THE FAILURE TO COMPLY WITH THE LEGAL FORMALITIES CONCERNING THE ENTRY , MOVEMENT AND RESIDENCE OF ALIENS DOES NOT IN ITSELF CONSTITUTE A THREAT TO PUBLIC POLICY AND PUBLIC SECURITY WITHIN THE MEANING OF THE TREATY .
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19 As the Commission points out, it is clear from settled case-law of the Court of Justice that the purpose of Articles 64 and 65 of the Staff Regulations is to ensure that all officials of the same grade and step have equivalent purchasing power, wherever their place of employment, in accordance with the principle of equality of treatment (see, in particular, Case 194/80 Benassi v Commission [1981] ECR 2815, paragraph 5; Case C-301/90 Commission v Council [1992] ECR I-221, paragraph 22). As the Advocate General has pointed out at paragraph 101 of his Opinion, it is undisputed that, during the period in question, the cost of living in Karlsruhe was considerably lower than that in Berlin. Therefore, to apply to the remuneration of staff employed in Karlsruhe a weighting calculated by reference to the cost of living in Berlin would be contrary to the purpose of those articles of the Staff Regulations.
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22 Next, it should be noted that the purpose of Articles 64 and 65 of the Staff Regulations, as the Council itself recognizes, is to ensure that all officials have equivalent purchasing power, wherever their place of employment, in accordance with the principle of equality of treatment.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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17. According to settled case-law, the need for a uniform interpretation of the provisions of Community law makes it impossible for the text of a provision to be considered in isolation, but requires, on the contrary, that it be interpreted and applied in the light of the versions existing in the other official languages (Case 26/69 Stauder [1969] ECR 419, paragraph 3; Case 55/87 Moksel Import und Export [1988] ECR 3845, paragraph 15; and Case C‑296/95 EMU Tabac and Others [1998] ECR I‑1605, paragraph 36; and Case C‑63/06 Profisa [2007] ECR I‑0000, paragraph 13).
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36 Furthermore, to discount two language versions, as the applicants in the main proceedings suggest, would run counter to the Court's settled case-law to the effect that the need for a uniform interpretation of Community regulations makes it impossible for the text of a provision to be considered in isolation but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (see, in particular, Case 9/79 Koschniske [1979] ECR 2717, paragraph 6). Lastly, all the language versions must, in principle, be recognised as having the same weight and this cannot vary according to the size of the population of the Member States using the language in question.
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51. Le Tribunal n’a pas, à cet égard, commis d’erreur de droit. Il est vrai qu’il incombe à la Commission de respecter les garanties conférées par l’ordre juridique communautaire dans les procédures administratives, telles que, notamment, l’obligation pour l’institution compétente d’examiner, avec soin et impartialité, tous les éléments pertinents du cas d’espèce, le droit de l’intéressé de faire connaître son point de vue ainsi que celui de voir motiver la décision de façon suffisante (voir arrêt du 21 novembre 1991, Technische Universität München, C-269/90, Rec. p. I-5469, point 14). En revanche, il ne lui incombe pas, dans le cadre d’une plainte concernant le non-respect du droit communautaire par un État membre, d’informer les plaignants de tout développement purement interne du dossier ouvert à la suite de leur plainte. Ainsi, s’agissant d’un changement d’avis interne sur le bien-fondé d’une plainte, la Commission n’était pas tenue d’en informer les plaignants.
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108. Two officials who are reclassified in a higher grade under different rules of the Staff Regulations are, accordingly, in different situations (see, by analogy, Centeno Mediavilla and Others v Commission , paragraphs 79 and 80).
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80. En effet, les requérants, ainsi qu’il a été constaté par le Tribunal, en tant que fonctionnaires recrutés après le 1 er mai 2004, ne se trouvent pas dans la même situation juridique que les fonctionnaires recrutés avant cette date, car, au moment de l’entrée en vigueur de la réforme, à la différence des fonctionnaires déjà recrutés, ils n’avaient qu’une vocation à être nommés.
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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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72. In any event, even if it might have been conceivable, had there been a dispute concerning the interpretation of the Association Agreement as such, to bring the matter before the Association Council, it should be recalled that, as the Court has already held, the fact that the dispute was not referred to the Association Committee, an emanation of the Association Council, cannot be used as justification for derogating from the system of cooperation and respect for the areas of competence as allocated under the Association Agreement (see, by analogy, Sfakianakis , paragraph 52).
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52. In that light, the fact that the dispute was not referred to the Association Committee cannot be used as a justification to derogate from the system of cooperation and not to respect the powers as allocated under the Association Agreement.
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76
Article 18 TFEU, which prohibits any discrimination on grounds of nationality, is applicable in all situations falling within the material scope of EU law, and those situations include the exercise of the freedom conferred by Article 21 TFEU to move and reside within the territory of the Member States (see, to that effect, judgment of 4 October 2012 in Commission v Austria, C‑75/11, EU:C:2012:605, paragraph 39 and the case-law cited).
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30. First, concerning the purpose of those two Community measures, the first and second recitals of the mutual assistance directive and the third recital of the administrative cooperation regulation show that their aim is to combat tax evasion and avoidance and to allow Member States to determine exactly the amount of tax to levy (see, by analogy, Case C‑420/98 W.N. [2000] ECR I‑2847, paragraphs 15 and 22, and, concerning Council Regulation (EC) No 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax and repealing Regulation (EEC) No 218/92 (OJ 2003 L 264, p. 1), Case C‑533/03 Commission v Council [2006] ECR I‑1025, paragraphs 49 and 52).
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22 In the light of the purpose of the Directive, which is not only to combat tax evasion and avoidance, but also to enable a correct assessment of taxes on income and on capital to be effected in the different Member States, Article 4(1)(a) of the Directive must be interpreted as meaning that a Member State is without prior request to forward information to the tax authorities of another Member State where it has grounds for supposing that, without that information, an unjustified saving in tax might exist or be granted in that other State. In this context, it is not necessary for that saving to amount to a large sum.
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19. In that connection, it must be noted, as a preliminary point, that the Court has held, in its case-law relating to the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), that an action similar to that at issue in the main proceedings is related to bankruptcy or winding-up if it derives directly from the bankruptcy or winding-up and is closely connected with the proceedings for the ‘liquidation des biens’ or the ‘règlement judiciaire’ (see Case 133/78 Gourdain [1979] ECR 733, paragraph 4). An action with such characteristics does not therefore fall within the scope of that convention.
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29. As regards the phrase ‘school or university education’ included therein, the Court, whilst refraining expressly from providing a precise definition, pointed out in paragraph 26 of the abovementioned Haderer judgment, that the phrase is not limited only to education which leads to examinations for the purpose of obtaining qualifications or which provides training for the purpose of carrying out a professional or trade activity, but includes other activities which are taught in schools or universities in order to develop pupils’ or students’ knowledge and skills, provided that those activities are not purely recreational.
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26. While it is unnecessary to produce a precise definition in this judgment of the Community concept of ‘school or university education’ for the purposes of the VAT system, it is sufficient, in this case, to observe that that concept is not limited only to education which leads to examinations for the purpose of obtaining qualifications or which provides training for the purpose of carrying out a professional or trade activity, but includes other activities which are taught in schools or universities in order to develop pupils’ or students’ knowledge and skills, provided that those activities are not purely recreational.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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49. The public interest objective underlying the application of the three grounds for refusal of registration set out in Article 3(1)(e) of Directive 2008/95 precludes refusal of registration where none of those three grounds is fully applicable (judgment in Hauck , C‑205/13, EU:C:2014:2233, paragraph 42).
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42. In addition, it must be pointed out that — as the Advocate General indicated in point 99 of his Opinion — the public interest objective underlying the application of the three grounds for refusal of registration set out in Article 3(1)(e) of the trade marks directive precludes refusal of registration where none of those three grounds is fully applicable.
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66. Although those provisions allow Member States to take certain measures, they must not however go further than is necessary to attain the objectives mentioned in the preceding paragraph. Such measures may not therefore be used in such a way that they would have the effect of systematically undermining the right to deduct VAT, which is a fundamental principle of the common system of VAT established by the relevant Community legislation (see Joined Cases C‑286/94, C‑340/95, C‑401/95 and C‑47/96 Molenheide and Others [1997] ECR I‑7281, paragraph 47, and Gabalfrisa and Others , paragraph 52).
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13. It must be pointed out directly that although the French version of Article 57 suggests that adaptations thereunder must be made prior to accession – ‘avant l’adhésion’ – that temporal restriction is not in fact, as is clear from the other language versions of that provision, placed on recourse to Article 57 but on the date of the acts to be amended (see, to that effect, in respect of the identical provision in the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, hereinafter ‘the 1994 Act of Accession’), Case C‑259/95 Parliament v Council [1997] ECR I‑5303, paragraphs 12 to 22).
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20 As regards the Parliament's assertion that such an interpretation would lead to the unrestricted application of Article 169, suffice it to note that, in any event, the contested Decision was adopted within a reasonable period after the entry into force of the Treaty of Accession.
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25. The Court of First Instance rightly held, in paragraph 35 of the judgment under appeal, that in Community competition law the definition of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of the legal status of that entity and the way in which it is financed (Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21, and Joined Cases C-264/01, C-306/01, C‑354/01 and C‑355/01 AOK-Bundesverband and Others [2004] ECR I-2493, paragraph 46). In accordance with the case-law of the Court of Justice, the Court of First Instance also stated, in paragraph 36 of the judgment under appeal, that it is the activity consisting in offering goods and services on a given market that is the characteristic feature of an economic activity (Case C‑35/96 Commission v Italy [1998] ECR I-3851, paragraph 36).
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32. It must be observed, next, that in CSC Financial Services , the Court, with reference to paragraphs 64 and 66 of SDC , stressed that the nature of the activities of CSC Financial Services Ltd was the essential element in determining whether the latter provided a service which was exempt for the purposes of points (3) to (5) of Article 13B(d) of the Sixth Directive ( CSC Financial Services , paragraphs 23 to 28). Second, the Court held at the beginning of paragraph 39 of that judgment that it was not necessary to consider the precise meaning of the term ‘negotiation’.
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26 As regards, more specifically, transactions concerning transfers within the meaning of Article 13B(d)(3) of the Sixth Directive, it is clear from the judgment in SDC that the services provided must have the effect of transferring funds and entail changes of a legal and financial character. The Court held at paragraph 66 of its judgment in SDC that a service exempt under the Sixth Directive must be distinguished from a mere physical or technical supply, such as making a data-handling system available to a bank and that, in this regard, the national court must examine in particular the extent of the data-handling centre's responsibility vis-à-vis the banks, in particular the question whether its responsibility is restricted to technical aspects or whether it extends to the specific, essential aspects of the transactions.
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16. Ainsi qu’il ressort d’une jurisprudence constante, la révision constitue non une voie d’appel, mais une voie de recours extraordinaire permettant de mettre en cause l’autorité de la chose jugée attachée à un arrêt définitif ou à une ordonnance rendue en application de l’article 119 du règlement de procédure en raison des constatations de fait sur lesquelles la juridiction s’est fondée. La révision présuppose la découverte d’éléments de nature factuelle, antérieurs au prononcé de l’arrêt ou de l’ordonnance, inconnus jusque-là de la juridiction qui a rendu cet arrêt ou cette ordonnance ainsi que de la partie demanderesse en révision et qui, si ladite juridiction avait pu les prendre en considération, auraient été susceptibles de l’amener à consacrer une solution différente de celle apportée au litige (voir, notamment, arrêts du 7 mars 1995, ISAE/VP et Interdata/Commission, C‑130/91 REV, Rec. p. I‑407, point 6, ainsi que du 23 janvier 2003, N/Commission, C‑181/01 P‑REV, non publié au Recueil, point 18 et jurisprudence citée).
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51. In that connection, it should be recalled that the perception of the public or social groups concerned may be relevant for the overall assessment of the statements at issue in the main proceedings (see, to that effect, Case C‑470/03 AGM-COS.MET [2007] ECR I‑2749, paragraphs 55 to 58).
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57. The decisive factor for attributing the statements of an official to the State is whether the persons to whom the statements are addressed can reasonably suppose, in the given context, that they are positions taken by the official with the authority of his office.
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3 The Mediawet is intended to establish a pluralist and non-commercial radio and television broadcasting system. Under Articles 31 and 34 of that law, the air time available for programmes broadcast on the national radio and television network is allocated by the body responsible for supervising the implementation of the Mediawet, the Commissariaat voor de Media, in particular to broadcasting associations, associations of listeners or viewers which have legal personality and represent the main schools of thought in Dutch society.
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À cet égard, il convient de souligner que la seule circonstance que le ou les documents dont la divulgation est demandée relèvent
du dossier administratif afférent à une catégorie d’inspection ou d’enquête pour laquelle la Cour a reconnu que la divulgation
de l’information, en vertu du règlement n° 1049/2001, porterait atteinte à la protection de cette inspection ou enquête est
susceptible de justifier l’application de la présomption générale de confidentialité, et ce indépendamment du fait que la
demande d’accès a identifié précisément ou non le ou les documents concernés (voir, par analogie, arrêt du 28 juin 2012, Commission/Éditions
Odile Jacob, C‑404/10 P, EU:C:2012:393, point 131).
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131. Such an assessment is also valid as regards the legal advice referred to in paragraph 1(g) of the judgment under appeal, over and above the considerations appropriately set out by the General Court in paragraph 160 of the judgment under appeal.
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33. To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity for the purposes of the second indent of Article 3(2) of Directive 95/46.
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36. National legislation not intended to apply only to those shareholdings which enable the holder to have a definite influence on a company’s decisions and to determine its activities but which applies irrespective of the size of the holding which the shareholder has in a company may fall within the ambit of both Article 43 EC and Article 56 EC (see, to that effect, Holböck , paragraphs 23 and 24). Contrary to what the Italian Republic maintains, Cadbury Schweppes and Cadbury Schweppes Overseas does not support the conclusion that in such a case only Article 43 EC is of relevance. That judgment, as its paragraph 32 makes clear, concerns only a situation in which a company holds shareholdings giving it control of other companies (see Case C‑207/07 Commission v Spain [2008] ECR I‑0000, paragraph 36).
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24. National legislation which makes the receipt of dividends liable to tax, where the rate depends on whether the source of those dividends is national or otherwise, irrespective of the extent of the holding which the shareholder has in the company making the distribution, may fall within the scope of both Article 43 EC on freedom of establishment and Article 56 EC on free movement of capital (see, to that effect, Test Claimants in Class IV of the ACT Group Litigation , paragraphs 37 and 38, and Test Claimants in the FII Group Litigation , paragraphs 36, 80 and 142).
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141 Accordingly, the Court of First Instance committed an error of law by restricting its examination of the complaint that the Commission had delayed in taking action to the finding that there was no limitation period in the field under consideration and by failing to ascertain whether the Commission had acted in an excessively belated manner. The contested judgment must be set aside in that regard.
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104
Indeed, according to the Court’s case-law, the judicial review provided for under Article 263 TFEU, together with the unlimited jurisdiction in respect of the amount of the fine provided for under Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), involves review by the EU courts of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine (see, to that effect, judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 67).
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67. The review provided for by the Treaties thus involves review by the Courts of the European Union of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. The review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle of effective judicial protection in Article 47 of the Charter.
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39. First, preserving agricultural communities, maintaining a distribution of land ownership which allows the development of viable farms and sympathetic management of green spaces and the countryside as well as encouraging a reasonable use of the available land by resisting pressure on land, and preventing natural disasters are social objectives.
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24. It should also be borne in mind that Article 9 of the Sixth Directive contains rules for determining the place where services are deemed to be supplied for VAT purposes. Whereas Article 9(1) lays down a general rule in that regard, Article 9(2) sets out a number of specific instances of places where certain services are deemed to be supplied. The object of those provisions is to avoid, first, conflicts of jurisdiction which may result in double taxation, and, secondly, non-taxation (see Case 168/84 Berkholz [1985] ECR 2251, paragraph 14; Case C‑327/94 Dudda [1996] ECR I‑4595, paragraph 20; Case C‑167/95 Linthorst, Pouwels en Scheres [1997] ECR I‑1195, paragraph 10; Case C‑452/03 RAL (Channel Islands) and Others [2005] ECR I‑3947, paragraph 23; and Case C‑114/05 Gillan Beach [2006] ECR I‑2427, paragraph 14).
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23. Article 9 of the Sixth Directive contains rules f or determining the place where services are deemed to be supplied for tax purposes. Whereas Article 9(1) lays down a general rule on the matter, Article 9(2) sets out a number of specific instances of places where certain services are deemed to be supplied. The object of those provisions is to avoid, first, conflicts of jurisdiction which may result in double taxation, and, secondly, non-taxation (see Case 168/84 Berkholz [1985] ECR 2251, paragraph 14, Case C-327/94 Dudda [1996] ECR I-4595, paragraph 20, and Case C-167/95 Linthorst, Pouwels en Scheres [1997] ECR I-1195, paragraph 10).
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29 With respect to the investment in infrastructure and the training programme, it must be emphasized that the Commission found in the contested decision that the infrastructure and training measures would not benefit the joint venture exclusively, enabling it to conclude that the financial assistance granted by the Portuguese Republic should not be regarded as State aid.
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24. Such treatment is permissible only if it pursues a legitimate objective compatible with the Treaty or is justified by overriding reasons in the public interest. It is further necessary, in such a case, that its application be appropriate to ensuring the attainment of the objective thus pursued and not go beyond what is necessary to attain it (see, in particular, Case C-446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 35; Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-7995, paragraph 47; and Case C-347/04 Rewe Zentralfinanz [2007] ECR I-0000, paragraph 37).
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37. Such a restriction on freedom of establishment can be accepted only if it pursues a legitimate aim compatible with the Treaty or is justified by overriding reasons of public interest. But even if that were so, application of that measure would still have to be such as to ensure achievement of the aim in question and not go beyond what is necessary for that purpose (see, inter alia, Marks & Spencer , paragraph 35 and the case-law cited there, and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 47).
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99 Second, the appellant's argument concerning the consequences of joining the information exchange system on a new trader's decision-making autonomy is, in substance, identical to the argument already considered in connection with the first part of this ground of appeal. It is sufficient in this regard to refer to paragraphs 80 to 91 of this judgment.
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95 As regards the question whether intra-Community trade is affected, it is sufficient to observe that 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; Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22; and CNSD, paragraph 48).
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29 AN AGREEMENT EXTENDING OVER THE WHOLE OF THE 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 DESIGNED TO BRING ABOUT AND PROTECTING DOMESTIC PRODUCTION .
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59. En particulier, pour ce qui est de la gravité des infractions au droit de l’Union relatif à la concurrence, il résulte d’une jurisprudence constante que celle-ci doit être établie en fonction d’un grand nombre d’éléments, tels que, notamment, les circonstances particulières de l’affaire, le rôle joué par chaque entreprise dans une entente, le profit qu’elle a pu tirer de cette pratique, la taille de l’entreprise, la valeur des marchandises ou des services concernés, le risque que des infractions de ce type représentent pour les objectifs de l’Union ainsi que la portée dissuasive des amendes, et ce sans qu’ait été établie une liste contraignante ou exhaustive de critères devant obligatoirement être pris en compte (voir, en ce sens, arrêts Dansk Rørindustri e.a./Commission, précité, points 241 et 242, ainsi que du 3 septembre 2009, Prym et Prym Consumer/Commission, C‑534/07 P, Rec. p. I‑7415, point 54).
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29. In addition, it is for the referring court to ensure compliance with the principle of legal certainty in the interpretation, in the light of a directive’s wording and purpose, of the national law adopted in order to implement it (see Joined Cases C‑74/95 and C‑129/95 X [1996] ECR I‑6609, paragraph 26).
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26 The national court must therefore ensure that that principle is observed when interpreting, in the light of the wording and the purpose of the Directive, the national legislation adopted in order to implement it.
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32 That interpretation is not invalidated by the arguments advanced by the United Kingdom, German and Greek Governments to the effect that deduction from the taxable amount of reductions granted directly, or of refunds made directly, to the consumer by the initial supplier after delivery to a wholesaler or retailer would upset the functioning of the VAT machinery and render the system unworkable because it would require each wholesaler or retailer in the chain retroactively to adjust the price and, consequently, the amount of VAT they had paid to their own supplier and would require the latter to issue amended invoices.
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5. In paragraphs 1 and 2 of the operative part of the judgment in Commission v Germany , the Court:
‘1. Declare[d] that since the Municipality of Bockhorn (Germany) failed to invite tenders for the award of the contract for the collection of its waste water and failed to publish notice of the results of the procedure for the award of the contract in the Supplement to the Official Journal of the European Communities , the Federal Republic of Germany, at the time of the award of that public service contract, failed to fulfil its obligations under Article 8 in conjunction with Article 15(2) and Article 16(1) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1);
2. Declare[d] that since the City of Braunschweig (Germany) awarded a contract for waste disposal by negotiated procedure without prior publication of a contract notice, although the criteria laid down in Article 11(3) of Directive 92/50 for an award by privately negotiated procedure without a Community-wide invitation to tender had not been met, the Federal Republic of Germany, at the time of the award of that public service contract, failed to fulfil its obligations under Article 8 and Article 11(3)(b) of that directive.’
Pre-litigation procedure
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2. Article 8 of Directive 92/50 provides that:
"Contracts which have as their object services listed in Annex IA shall be awarded in accordance with the provisions of Titles III to VI."
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34
Furthermore, it must be noted, first, that the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the bids of all tenderers must be subject to the same conditions. Second, the obligation of transparency, which is its corollary, is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That obligation implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (judgment of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 36 and the case-law cited).
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45. Those principles must also be observed, and have the same consequences, where Community legislation obliges Member States, in order to implement it, to adopt measures imposing obligations on individuals. The measures adopted by the Member States to implement Community law must comply with the general principles of that law (see, to that effect, Case C-313/99 Mulligan and Others [2002] ECR I-5719, paragraphs 35 and 36, and Case C‑384/05 Piek [2007] ECR I-289, paragraph 34). Therefore, national measures which, to implement Community legislation, impose obligations on individuals, must be published in order for the individuals to be able to ascertain those obligations (see, to that effect, Mulligan and Others , paragraphs 51 and 52).
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34. In addition, it is settled case-law that, when adopting measures to implement Community legislation, national authorities must exercise their discretion in compliance with the general principles of Community law, which include the principle of proportionality (see, inter alia, Case C‑313/99 Mulligan and Others [2002] ECR I‑5719, paragraphs 35 and 36; Joined Cases C‑231/00, C‑303/00 and C‑451/00 Cooperativa Lattepiú and Others [2004] ECR I‑2869, paragraph 57; and Case C‑496/04 Slob [2006] ECR I‑0000, paragraph 41).
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37. Thus, by Decision 2001/246, based on Article 10 of Directive 90/425 and Article 13(3) of Directive 85/511, the Commission authorised the suppressive vaccination and pre-emptive killing of animals, the latter measure designating, according to Article 1 of that decision, the killing of susceptible animals on holdings within a certain radius around holdings placed under the restrictions defined in Article 4 or 5 of Directive 85/511, aimed at the urgent reduction of numbers of animals of susceptible species in an infected area.
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71. As the Advocate General has observed in points 81 and 82 of his Opinion, that question arises from a misreading of that judgment. As is clear from paragraphs 25 and 26 of the latter and from the subsequent case-law referring thereto (see, in particular, the judgment of 13 March 2008 in Case C-227/06 Commission v Belgium [2008] ECR I-46, paragraphs 62 and 63 and case-law cited), the Court has stated that if a Member State wishes to rely on an objective capable of justifying an obstacle to the freedom to provide services arising from a national restrictive measure, it is under a duty to supply the court called upon to rule on that question with all the evidence of such a kind as to enable the latter to be satisfied that the said measure does indeed fulfil the requirements arising from the principle of proportionality.
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62. En outre, il découle de la jurisprudence de la Cour que l’article 30 CE étant une exception, d’interprétation stricte, à la règle de la libre circulation des marchandises à l’intérieur de la Communauté, il appartient aux autorités nationales compétentes de démontrer que leur réglementation est propre et nécessaire pour réaliser un ou plusieurs des objectifs mentionnés à cet article ou des exigences impératives (voir, en ce sens, arrêts van Bennekom, précité, point 40; du 13 mars 1997, Morellato, C‑358/95, Rec. p. I‑1431, point 14; ATRAL, précité, point 67; Commission/Italie, précité, point 22, et du 15 novembre 2007, Commission/Allemagne, précité, point 88).
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47. In the main proceedings, it is not disputed that, formally, in accordance with the contractual terms, Alabaster provided the lenders with the supplies of loan broking services and that it was the recipient of the supplies of advertising services provided by Wallace Barnaby.
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41. However, a service such as that at issue in the main proceedings, which involves a cross-border element, falls under Article 56 TFEU (see, by analogy, judgment in OSA, C‑351/12, EU:C:2014:110, paragraph 68).
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68. Since such a service is of a cross-border nature, Article 56 TFEU is applicable to it (see, to that effect, Bond van Adverteerders and Others , paragraph 15).
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70. The referring court notes in this respect that it would have been preferable either to apply the new scheme retroactively to all established civil servants or to apply a transitional system guaranteeing an established civil servant and in a favoured position the same level of pay as he received previously until he has gained the experience required to qualify for higher pay under the new scheme.
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22. As regards the wording of the question itself and the questions raised by the national court, it is to be borne in mind, first, that the Court does not have jurisdiction to rule upon the compatibility of a national measure with European Union law (see, inter alia, Case C-118/08 Transportes Urbanos y Servicios Generales [2010] ECR I-0000, paragraph 23 and case-law cited). Nor does the Court have jurisdiction to rule on the compatibility of State aid or of an aid scheme with the common market, since that assessment falls within the exclusive competence of the European Commission, subject to review by the Court (see Case C‑237/04 Enirisorse [2006] ECR I-2843, paragraph 23). The Court also has no jurisdiction to give a ruling on the facts in an individual case or to apply the European Union law rules which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, paragraph 69 and case-law cited).
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69. In that regard, it must be recalled that the Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case 13/68 Salgoil [1968] ECR 453, 459; Case 51/74 Van der Hulst [1975] ECR 79, paragraph 12; Case C-320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11; Joined Cases C-175/98 and C-177/98 Lirussi and Bizzaro [1999] ECR I-6881, paragraph 38; and Case C-282/00 RAR [2003] ECR I-4741, paragraph 47).
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89 Consequently, Article 52 of the Treaty entitles a subsidiary resident in the United Kingdom and/or its parent company having its seat in another Member State to obtain interest accrued on the ACT paid by the subsidiary during the period between the payment of ACT and the date on which MCT became payable, and that sum may be claimed by way of restitution.
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60. With regard to the area of games and bets, the Court of Justice held, in Gambelli and Others , that Article 43 can apply to a situation in which an undertaking established in one Member State has, in another Member State, a presence which takes the form of commercial agreements with operators or intermediaries relating to the creation of data transmission centres which make electronic means of communication available to users, collect and register intentions to bet and forward them to the said undertaking. Where an undertaking pursues the activity of collecting bets through the intermediary of an organisation of agencies established in another Member State, any restrictions on the activities of those agencies constitute obstacles to the freedom of establishment ( Gambelli and Others , paragraphs 14 and 46, and Placanica and Others , paragraph 43).
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46. Where a company established in a Member State (such as Stanley) pursues the activity of collecting bets through the intermediary of an organisation of agencies established in another Member State (such as the defendants in the main proceedings), any restrictions on the activities of those agencies constitute obstacles to the freedom of establishment.
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113. Within that framework, it is for the Court of Justice to verify whether the Court of First Instance has correctly assessed the Commission’s exercise of that discretion ( SGL Carbon v Commission , paragraph 48, and Dalmine v Commission , paragraph 134).
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40. On the other hand, if the applicant calls in question the merits of the decision appraising the aid as such, the mere fact that it may be regarded as ‘concerned’ within the meaning of Article 88(2) EC cannot suffice for the action to be considered admissible. It must then demonstrate that it enjoys a particular status within the meaning of Plaumann v Commission . That would in particular apply where the applicant’s market position would be substantially affected by the aid to which the decision at issue relates (see, to that effect, Case 169/84 Cofaz and Others v Commission [1986] ECR 391, paragraphs 22 to 25, and Commission v Aktionsgemeinschaft Recht und Eigentum , paragraph 37).
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22 IT IS CLEAR FROM A CONSISTENT LINE OF DECISIONS OF THE COURT THAT PERSONS OTHER THAN THOSE TO WHOM A DECISION IS ADDRESSED MAY CLAIM TO BE CONCERNED WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 ONLY IF THAT DECISION AFFECTS THEM BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO THEM , OR BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS , AND BY VIRTUE OF THESE FACTORS DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED ( JUDGMENT OF 15 JULY 1963 IN CASE 25/62 PLAUMANN V COMMISSION ( 1963 ) ECR 95 ).
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26 It follows from all the foregoing that the ECSC may, if the recommendation in question has the characteristics which would allow a directive which has not been transposed to be relied on before national courts and tribunals, rely on that recommendation as against a State, subject to the condition that the grant of preferential status to debts owed to the ECSC is effective only as against that State, the Community' s claims being placed on the same footing as any claims by the State . The preferential status granted to the ECSC may not, however, prejudice the rights of creditors other than the State under national legislation on the rights of creditors in the absence of the recommendation .
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73
The Court has already explained in that regard that it is not indispensable for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected and that, on the contrary, the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from that adopted by another State (see judgments of 14 October 2004 in Omega, C‑36/02, EU:C:2004:614, paragraphs 37 and 38, and of 22 December 2010 in Sayn-Wittgenstein, C‑208/09, EU:C:2010:806, paragraph 91). It must also be noted that, in accordance with Article 4(2) TEU, the European Union is to respect the national identities of its Member States, which include the status of the State as a Republic (judgment of 22 December 2010 in Sayn-Wittgenstein, C‑208/09, EU:C:2010:806, paragraph 92).
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92. It must also be noted that, in accordance with Article 4(2) TEU, the European Union is to respect the national identities of its Member States, which include the status of the State as a Republic.
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68. Les dispositions litigieuses du code ne sont pas de nature à compenser les désavantages auxquels sont exposées les carrières des fonctionnaires et militaires féminins ainsi que celles des autres personnels féminins auxquels le code s’applique en aidant ces femmes dans leur vie professionnelle. Au contraire, elles se bornent à accorder aux bénéficiaires de sexe féminin, et notamment celles ayant la qualité de mère, des conditions plus favorables que celles applicables aux bénéficiaires de sexe masculin, en ce qui concerne l’âge de départ à la retraite et le service minimum requis au moment du départ à la retraite, sans porter remède aux problèmes qu’elles peuvent rencontrer durant leur carrière professionnelle (voir, en ce sens, arrêt Griesmar, précité, point 65).
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42
However, neither Directive 89/665 nor Directive 92/13 contains any provisions specifically governing the conditions under which those review procedures may be used. Thus, the Court has already held that Directive 89/665 laid down only the minimum conditions to be satisfied by the review procedures established in domestic law to ensure compliance with the requirements of EU law concerning public procurement (see, in particular, judgments of 27 February 2003, Santex, C‑327/00, EU:C:2003:109, paragraph 47; of 19 June 2003, GAT, C‑315/01, EU:C:2003:360, paragraph 45; and of 30 September 2010, Strabag and Others, C‑314/09, EU:C:2010:567, paragraph 33).
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45. However, Directive 89/665 lays down only the minimum conditions to be satisfied by the review procedures established in domestic law to ensure compliance with the requirements of Community law concerning public contracts (see, in particular, Case C-327/00 Santex [2003] ECR I-1877, paragraph 47).
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100. That condition must, on the other hand, be understood as meaning that it is particularly persons of a given ethnic origin who are at a disadvantage because of the measure at issue.
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36. As the Court has already made clear, the last-mentioned condition is of particular importance where the directive in question is intended to accord rights to nationals of other Member States (Commission v Greece , cited above, paragraph 9, and Commission v Netherlands , cited above, paragraph 18). That is the position in relation to the Second Directive, which is intended in particular, according to the fifth recital in its preamble, to guarantee victims adequate protection, irrespective of the Member State in which the accident occurred.
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18 As the Court has already made clear, the last-mentioned condition is of particular importance where the directive in question is intended to accord rights to nationals of other Member States (Case C-365/93, cited above, paragraph 9). That is the position in the present case, it being one of the aims of the Directive, according to the sixth recital in its preamble, to safeguard the citizen in his role as consumer when acquiring goods and services under contracts which are governed by the laws of Member States other than his own.
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5. Par l’arrêt Comitato «Venezia vuole vivere» e.a./Commission (C‑71/09 P, C‑73/09 P et C‑76/09 P, EU:C:2011:368), la Cour a rejeté les pourvois formés contre l’arrêt mentionné au point précédent.
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38. In that regard, it is appropriate to bear in mind settled case-law, according to which, 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 (see, inter alia, Proxxon EU:C:2006:111, paragraph 21; Case C‑140/08 Rakvere Lihakombinaat EU:C:2009:667, paragraph 42; and Digitalnet and Others EU:C:2012:745, paragraph 27 and the case-law cited).
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42. It is settled case-law that, in the interests of legal certainty and for 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 the notes to the sections or chapters (see, in particular, Case C‑183/06 RUMA [2007] ECR I-1559, paragraph 27, and Joined Cases C‑208/06 and C‑209/06 Medion and Canon Deutschland [2007] ECR I‑7963, paragraph 34).
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19 As regards periods of service prior to 17 May 1990, the Barber judgment excluded application of Article 119 to pension benefits payable in respect of those periods, so that employers and trustees are not required to ensure equal treatment as far as those benefits are concerned.
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20. The Court added that, where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site’s conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project ( Sweetman and Others EU:C:2013:220, paragraph 30).
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30. Where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site’s conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light of, in particular, the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, to this effect, Waddenvereniging and Vogelbeschermingsvereniging , paragraph 49).
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25 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT ARTICLE 16 ( 1 ) OF THE CONVENTION APPLIES TO ALL LETTINGS OF IMMOVABLE PROPERTY , EVEN FOR A SHORT TERM AND EVEN WHERE THEY RELATE ONLY TO THE USE AND OCCUPATION OF A HOLIDAY HOME .
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51 Even on the hypothesis that, as the German Government contends, the party concerned is placed at an advantage in comparison with a pensioner who has always been resident in Germany, that consequence would result not from the interpretation of Community law but from the system at present in force, which, in the absence of a common social security scheme, is based on a simple coordination of national legislative systems which have not been harmonised (see, in particular, Case 27/71 Keller v Caisse Régionale d'Assurance Vieillesse des Travailleurs Salariés de Strasbourg [1971] ECR 885, paragraph 13, and Case 22/77 Fonds National de Retraite des Ouvriers Mineurs v Mura [1977] ECR 1699, paragraph 10).
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13 IF THIS PROCEDURE WERE TO LEAD IN CERTAIN CASES TO MIGRANT WORKERS BEING PLACED AT AN ADVANTAGE IN COMPARISON WITH NATIONALS OF THE STATE IN WHICH THEY WORK, THIS CONSEQUENCE WOULD FOLLOW NOT FROM THE INTERPRETATION OF COMMUNITY LAW BUT FROM THE SYSTEM AT PRESENT IN FORCE, WHICH, IN THE ABSENCE OF A COMMON SOCIAL SECURITY SCHEME, DEPENDS ON A SIMPLE COORDINATION OF NATIONAL LEGISLATIVE SYSTEMS WHICH HAVE NOT BEEN HARMONIZED .
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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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57 The reasoning which led the Court to hold that, as Community law stands, Articles 12 and 13 of Decision No 3/80 do not have direct effect, must apply by analogy to all the other provisions of that decision which require additional measures for their application in practice. That reasoning cannot, however, be transposed to the principle of equal treatment in the field of social security, embodied in Article 3(1) of that decision.
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34 Thus, on 8 February 1983 the Commission submitted a proposal for a Council Regulation implementing within the European Economic Community Decision No 3/80 (OJ 1983 C 110, p. 1).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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53. Article 35(1) EU, in that it does not enable national courts to refer a question to the Court for a preliminary ruling on a common position but only a question concerning the acts listed in that provision, treats as acts capable of being the subject of such a reference for a preliminary ruling all measures adopted by the Council and intended to produce legal effects in relation to third parties. Given that the procedure enabling the Court to give preliminary rulings is designed to guarantee observance of the law in the interpretation and application of the Treaty, it would run counter to that objective to interpret Article 35(1) EU narrowly. The right to make a reference to the Court for a preliminary ruling must therefore exist in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties (see, by analogy, Case 22/70 Commission v Council (ERTA) [1971] ECR 263, paragraphs 38 to 42, and Case C-57/95 France v Commission [1997] ECR I‑1627, paragraph 7 et seq.).
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40 THE OBJECTIVE OF THIS REVIEW IS TO ENSURE, AS REQUIRED BY ARTICLE 164, OBSERVANCE OF THE LAW IN THE INTERPRETATION AND APPLICATION OF THE TREATY .
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18 The same is true of those importers whose resale prices were taken into account for the construction of export prices and who are consequently concerned by the findings relating to the existence of dumping ( see judgments of 29 March 1979 in Case 118/77 Import Standard Office ( ISO ) (( 1979 )) ECR 1277, paragraph 15, and of 21 February 1984 Allied Corporation I, quoted above, paragraph 15 ).
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37
All the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the EU, and preclude measures which might place EU nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see judgment of 12 July 2012, Commission v Spain, C‑269/09, EU:C:2012:439, paragraph 51 and the case-law cited).
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51. The Treaty provisions on freedom of movement for persons are intended to facilitate the pursuit by citizens of the European Union of occupational activities of all kinds throughout the European Union and they preclude measures which might place those citizens at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see Case C-152/05 Commission v Germany , paragraph 21; Commission v Greece , paragraph 43; and Commission v Hungary , paragraph 46).
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50. In that regard, it must, first, be recalled that, in paragraphs 75 to 84 of Abatay and Others , the Court held that Article 13 of Decision No 1/80 is not subject to the condition that the Turkish national concerned satisfy the requirements of Article 6(1) of that decision and that the scope of that Article 13 is not restricted to Turkish migrants who are in paid employment.
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33
In that regard, as is clear from Directive 92/85 and the case-law of the Court, the legislature of the European Union wished to ensure that, during her maternity leave, the worker should receive an income of an amount at least equivalent to that of the allowance provided for by national social security legislation in the event of a break in her activities on health grounds (see, to that effect, judgments of 27 October 1998 in Boyle and Others, C‑411/96, EU:C:1998:506, paragraph 32; 1 July 2010 in Gassmayr, C‑194/08, EU:C:2010:386, paragraph 83; and 13 February 2014 in TSN and YTN, C‑512/11 and C‑513/11, EU:C:2014:73, paragraph 36).
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83. As is clear from Directive 92/95 and the relevant case-law of the Court, the legislature of the European Union wished to ensure that, during her maternity leave, the worker receives an income at least equivalent to the sickness allowance provided for by national social security legislation in the event of a break in her activities on health grounds ( Boyle and Others , paragraph 32).
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26. À ce sujet, sous le titre «L’offre de produits à base de carbone et de graphite pour applications électriques et mécaniques», le point 37 de cette décision contient la description du marché desdits produits. Il y est notamment relevé que le secteur en cause a été marqué par une tendance à la concentration et que, en 1998, dernière année complète au cours de laquelle toutes les entreprises visées par ladite décision ont participé au cartel, celui-ci englobait plus de 90 % du marché pour le groupe des produits concernés, la valeur totale de ce marché s’élevant à 291 millions d’euros, «y compris la valeur de l’usage captif». Dans le tableau figurant audit point 37, il est encore souligné que l’estimation du chiffre d’affaires des entreprises impliquées pour l’année 1998 englobait «la valeur correspondant à l’usage captif».
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74. In that respect, it should however be recalled that the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Government merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome (see, in particular, Commission v Spain , paragraph 47; Commission v Italy , paragraph 18; and Commission v Greece , paragraph 43).
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47. However, the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant government merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled the difficulties to be overcome (see Case 94/87 Commission v Germany [1989] ECR 175, paragraph 10; Commission v Italy , paragraph 14; and Commission v Spain , paragraph 25).
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20 In view however of the variety of operations which may be described as assembly there are situations where consideration on the basis of technical criteria may not be decisive in determining the origin of goods . In such cases it is necessary to take account of the value added by the assembly as an ancillary criterion .
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47. While the Member States as the addressees of Directive 2006/12 are bound as to this result to be achieved in terms of financial liability for the cost of disposing of waste, in accordance with Article 249 EC they may, however, choose the form and the methods to be applied in order to attain that result (see Commune de Mesquer , paragraph 80).
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80. In this regard, in accordance with Article 249 EC, while the Member States as the addressees of Directive 75/442 have the choice of form and methods, they are bound as to the result to be achieved in terms of financial liability for the cost of disposing of waste. They are therefore obliged to ensure that their national law allows that cost to be allocated either to the previous holders or to the producer of the product from which the waste came.
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66. However, the Court has already held, in respect of circumstances where the Commission had initially decided not to raise any objections to the aid in issue, that such fact could not be regarded as capable of having caused the recipient undertaking to entertain any legitimate expectation since that decision had been challenged in due time before the Court, which annulled it (Case C‑169/95 Spain v Commission [1997] ECR I‑135, paragraph 53).
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23. The Court held in Bötel and Lewark , with reference to national provisions similar to those at issue in the main proceedings, firstly that in principle they caused discrimination against women workers, contrary to Article 119 of the Treaty and the Directive, and secondly that it remained open to the Member State to prove that the legislation was justified by objective factors unrelated to any discrimination on grounds of sex.
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14 Although compensation such as that at issue in the main proceedings does not derive as such from the contract of employment, it is nevertheless paid by the employer by virtue of legislative provisions and under a contract of employment. Staff council members are necessarily employees of the undertaking and are entrusted with the task of safeguarding staff interests, thus promoting harmonious working relationships within the undertaking, which is in its interests.
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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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69. Furthermore, to assume that all the shareholders of a public limited company are engaged professionally in the sector within which the company objects fall is the very negation of the free movement of capital, which applies inter alia to portfolio investments, that is to say, the acquisition of securities on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (Joined Cases C-282/04 and C-283/04 Commission v Netherlands [2006] ECR I‑9141, paragraph 19). It is precisely this type of investment that investors from other Member States who are seeking to diversify their investments would be liable to make.
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19. In the absence of a definition in the EC Treaty of ‘movements of capital’ for the purposes of Article 56(1) EC, the Court has recognised the nomenclature annexed to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (an article repealed by the Treaty of Amsterdam) (JO 1988 L 178, p. 5) as having indicative value. Movements of capital for the purposes of Article 56(1) EC thus include in particular direct investments in the form of participation in an undertaking through the holding of shares which confers the possibility of effectively participating in its management and control (‘direct’ investments) and the acquisition of shares on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (‘portfolio’ investments) (see, to that effect, Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 21; Commission v France , paragraphs 36 and 37, and Commission v United Kingdom , paragraphs 39 and 40).
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38. Dans ces conditions, la seconde branche du premier moyen, par laquelle TSE reproche au Tribunal d’avoir violé son droit à un recours effectif, ainsi que la première branche du deuxième moyen, tirée d’une dénaturation des faits et de ses conclusions de première instance, sont insusceptibles d’entraîner l’annulation de l’ordonnance attaquée et doivent donc être écartées comme inopérantes (voir, en ce sens, arrêt du 11 mai 2006, Sunrider/OHMI, C‑416/04 P, Rec. p. I‑4237, point 69).
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23 The Court has consistently held (see, in particular, the abovementioned judgments in Rousseau Wilmot, paragraph 15; Bergandi, paragraph 15; Wisselink and Others, paragraph 18; and Giant, paragraph 12) that the principle of the common system of VAT consists, by virtue of Article 2 of the First Directive, in the application to goods and services up to the retail stage of a general tax on consumption which is exactly proportional to the price of the goods and services, irrespective of the number of transactions which take place in the production and distribution process before the stage at which the tax is charged. However, VAT is chargeable on each transaction only after deduction of the amount of VAT borne directly by the costs of the various price components. The procedure for deduction is so arranged by Article 17(2) of the Sixth Directive that taxable persons are authorised to deduct from the VAT for which they are liable the VAT which the goods or services have already borne.
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12 As the Court has consistently held (see, in particular, the judgments in Rousseau Wilmot and Bergandi, cited above, and in Joined Cases 93/88 and 94/88, Wisselink and Others v Staatssecretaris van Financiën [1989] ECR 2671), the principle of the common system of value added tax consists, by virtue of Article 2 of the First Directive, in the application to goods and services up to the retail stage of a general tax on consumption which is exactly proportional to the price of the goods and services, irrespective of the number of transactions which take place in the production and distribution process before the stage at which the tax is charged. However, value added tax is chargeable on each transaction only after deduction of the amount of value added tax borne directly by the costs of the various price components. The procedure for deduction is so arranged by Article 17(2) of the Sixth Directive that taxable persons are authorized to deduct from the value added tax for which they are liable the value added tax which the goods have already borne.
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34
Therefore, setting maximum amounts for vitamins and minerals which may be used in the manufacture of food supplements where, in the absence of a proven risk to human health, upper safe limits have not been established for those nutrients after such a scientific assessment, does not satisfy that requirement (see judgment of 29 April 2010, Solgar Vitamin’s France and Others, C‑446/08, EU:C:2010:233, paragraph 66).
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175. It is apparent from the case-law of the Court that, in order to determine whether the undertaking in a dominant position has abused such a position by its pricing practices, it is necessary to consider all the circumstances and to investigate whether the practice tends to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, or to strengthen the dominant position by distorting competition (see, to that effect, Nederlandsche Banden-Industrie-Michelin v Commission , paragraph 73, and British Airways v Commission , paragraph 67).
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67. In order to determine whether the undertaking in a dominant position has abused such a position by applying a system of discounts such as that described in paragraph 65 of this judgment, the Court has held that it is necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the discount, and to investigate whether, in providing an advantage not based on any economic service justifying it, the discount tends to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition ( Michelin , paragraph 73).
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9. Toutefois, 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 en cause telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (voir, notamment, arrêts du 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9).
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35 As regards the limitation in time of the effects of Article 119 of the Treaty, it should be recalled, first, that, in Case 43/75 Defrenne v Sabena [1976] ECR 455 (`Defrenne II'), paragraph 40, the Court held that the principle of equal pay contained in Article 119 of the Treaty may be relied upon before the national courts and that those courts have a duty to ensure protection of the rights which that provision vests in individuals. However, in paragraphs 74 and 75 of the same judgment, the Court made it clear that, by virtue of overriding considerations of legal certainty affecting all the interests involved, both public and private, the direct effect of Article 119 could not be relied on in order to support claims relating to pay periods prior to the date of that judgment, namely 8 April 1976, except as regards those workers who had already brought legal proceedings or made an equivalent claim.
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74 IN THESE CIRCUMSTANCES , IT IS APPROPRIATE TO DETERMINE THAT , AS THE GENERAL LEVEL AT WHICH PAY WOULD HAVE BEEN FIXED CANNOT BE KNOWN , IMPORTANT CONSIDERATIONS OF LEGAL CERTAINTY AFFECTING ALL THE INTERESTS INVOLVED , BOTH PUBLIC AND PRIVATE , MAKE IT IMPOSSIBLE IN PRINCIPLE TO REOPEN THE QUESTION AS REGARDS THE PAST .
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60. In this respect it need only be stated that, in connection with rules similar to the Portuguese rules criticised by the Commission, and faced with defence arguments similar to those submitted by the Portuguese Government, the Court has ruled that national legislation which makes the provision of certain services on national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitutes a restriction on the freedom to provide services within the meaning of Article 49 EC. Such a restriction cannot be justified since, by excluding consideration of the obligations to which the transfrontier service provider is already subject in the Member State in which it is established, it goes in any event beyond what is necessary to attain the objective sought, namely to ensure close supervision of those activities ( Commission v Belgium , paragraphs 35 to 38).
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71. It must be pointed out that, according to settled case-law, the principle of equal treatment and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C-304/01 Spain v Commission [2004] ECR I-0000, paragraph 31, and Case C-210/03 Swedish Match [2004] ECR I-0000, paragraph 70).
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31. Firstly, in that regard, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.
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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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26. It is first necessary to point out that it is 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 the section and chapter notes (see, inter alia, Case C-42/99 Eru Portuguesa [2000] ECR I-7691, paragraph 13; Case C-495/03 Intermodal Transports [2005] ECR I-8151, paragraph 47; Case C-445/04 Possehl Erzkontor [2005] ECR I-10721, paragraph 19; and Case C-500/04 Proxxon [2006] ECR I-1545, paragraph 21).
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47. According to settled case-law, 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 found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (see, inter alia, Case C-396/02 DFDS [2004] ECR I-8439, paragraph 27, and case-law cited).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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37
Although the principle of equal treatment and the obligation of transparency must be guaranteed even in regard to specific public contracts, this does not mean that the particular aspects of those contracts cannot be taken into account. That legal imperative and that practical necessity are reconciled, first, through strict compliance with the conditions of a contract as they were laid down in the contract documents up to the end of the implementation phase of that contract, but also, second, through the possibility of making express provision, in those documents, for the option for the contracting authority to adjust certain conditions, even material ones, of that contract after it has been awarded. By expressly providing for that option and setting the rules for the application thereof in those documents, the contracting authority ensures that all economic operators interested in participating in the procurement procedure are aware of that possibility from the outset and are therefore on an equal footing when formulating their respective tenders (see, by analogy, judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraphs 112, 115, 117 and 118).
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117. Consequently, in a situation such as that arising here, the contracting authority could not, once the contract had been awarded and, moreover, by a decision which derogates in its substance from the provisions of the earlier regulations, amend a significant condition of the invitation to tender such as the condition relating to the arrangements governing payment for the products to be supplied.
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33. In the light of Article 3 of Directive 2001/23, it is apparent that, by reason of the freedom to conduct a business, the transferee must be able to assert its interests effectively in a contractual process to which it is party and to negotiate the aspects determining changes in the working conditions of its employees with a view to its future economic activity.
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35. The Court has also held that the freedom to provide services includes the freedom for the recipients of services, including persons in need of medical treatment, to go to another Member State in order to receive those services there (see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16; Watts , paragraph 87; Elchinov , paragraph 37, and Commission v France , paragraph 31).
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87. It has also been held that the freedom to provide services includes the freedom for the recipients of services, including persons in need of medical treatment, to go to another Member State in order to receive those services there (see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16).
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34. Valimar does not belong to any of the categories of traders identified above, which the Court has recognised as having a direct right of action against regulations imposing an anti-dumping duty. In addition, it cannot be regarded as being in a situation similar to that of the undertaking in question in the case which gave rise to the judgment in ISO v Council (EU:C:1979:92).
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81. In a later case concerning a Commission decision finding that there had been abuse of a dominant position yet not imposing a fine, the Court held that the failure on the part of the General Court to adjudicate within a reasonable time can give rise to a claim for damages ( Der Grüne Punkt – Duales System Deutschland v Commission , paragraph 195).
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195. Conversely, as the Advocate General stated at point 307 et seq. of his Opinion, the failure on the part of the Court of First Instance to adjudicate within a reasonable time can give rise to a claim for damages brought against the Community under Article 235 EC and the second paragraph of Article 288 EC.
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6 ( 2 ) THE DEFENDANT CONTENDS THAT IN ANY EVENT AN AUTHORIZATION GRANTED TO THE FEDERAL REPUBLIC IS NOT OF DIRECT CONCERN TO THE APPLICANT SINCE THE FEDERAL REPUBLIC REMAINED FREE TO MAKE USE OF IT .
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42
It should be noted that it follows from well-established case-law that the application, for the purpose of calculating fines imposed for competition infringements, of new guidelines, such as the 2006 Guidelines, and in particular of a new method of calculating the amount of a fine contained therein, even to infringements committed before the adoption or the amendment of those guidelines, does not breach the principle of non-retroactivity in so far as those new guidelines and that new method were reasonably foreseeable at the time when the infringements in question were committed (see, to that effect, in particular, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 217, 218, and 227 to 232; of 18 May 2006, Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, C‑397/03 P, EU:C:2006:328, paragraph 25; of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 75; and of 14 September 2016, Ori Martin and SLM v Commission, C‑490/15 P and C‑505/15 P, not published, EU:C:2016:678, paragraphs 82 to 94).
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À cet égard, ainsi que le Tribunal l’a, en substance, jugé, aux points 94 à 97 de l’arrêt attaqué, la modification d’une politique
répressive, en l’occurrence la politique générale de la concurrence de la Commission en matière d’amendes, en particulier
lorsqu’elle est opérée par l’adoption de règles de conduite telles que des lignes directrices, peut avoir des incidences au
regard du principe de non‑rétroactivité. Afin de contrôler le respect du principe de non‑rétroactivité, il y a lieu de vérifier
si la modification en cause était raisonnablement prévisible à l’époque où les infractions concernées ont été commises (arrêt
du 28 juin 2005, Dansk Rørindustri e.a./Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P à C‑208/02 P et C‑213/02 P, EU:C:2005:408,
points 222 ainsi que 224).
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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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44 That interpretation is also in keeping with that placed on Article 900(1)(o) by the Court in Söhl & Söhlke. In paragraph 86 of that judgment, the Court held in essence that that provision, which in all language versions except German refers precisely to the same tariff treatments as Article 890 of the implementing regulation, namely, Community treatment and preferential tariff treatment, applies only to cases in which the goods would have been eligible for Community treatment or preferential tariff treatment, but not to cases in which the goods would have been eligible for other tariff measures.
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86 In the light of the foregoing considerations, the answer to the fourth question must be that Article 900(1)(o) of the implementing Regulation applies to cases in which the goods would have been eligible for Community treatment or preferential tariff treatment, but not to cases in which the goods would have been eligible for other forms of favourable treatment.
Fifth question
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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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82. As regards the concept of the ‘exercise of official authority’ within the meaning of the first paragraph of Article 45 EC, the assessment of that concept must take account, in accordance with settled case-law, of the character as European Union law of the limits imposed by that provision on the permitted exceptions to the principle of freedom of establishment, so as to ensure that the effectiveness of the Treaty in the field of freedom of establishment is not frustrated by unilateral provisions of the Member States (see, to that effect, Reyners , paragraph 50; Commission v Greece , paragraph 8; and Case C‑438/08 Commission v Portugal [2009] ECR I‑10219, paragraph 35).
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50 THIS CONSIDERATION MUST HOWEVER TAKE INTO ACCOUNT THE COMMUNITY CHARACTER OF THE LIMITS IMPOSED BY ARTICLE 55 ON THE EXCEPTIONS PERMITTED TO THE PRINCIPLE OF FREEDOM OF ESTABLISHMENT IN ORDER TO AVOID THE EFFECTIVENESS OF THE TREATY BEING DEFEATED BY UNILATERAL PROVISIONS OF MEMBER STATES .
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68. It follows that Clause 4(1) of the framework agreement appears, so far as its subject-matter is concerned, to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court.
Clause 5(1) of the framework agreement
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38 As regards the admissibility of the third plea, as ADP rightly points out, it is clear from the case-law of the Court of Justice (see, in particular, Case C-64/98 P Petrides v Commission [1999] ECR I-5187, paragraphs 31 to 34) that failure by the Court of First Instance to have due regard for the rights of defence may be pleaded on appeal to the Court of Justice. The third plea is therefore admissible.
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33 As regards the delay - which, it should be said, has not been established - in the lodging of the Commission's reply, nothing has been disclosed to show that it could have had any impact on the appellant's exercise of its rights in the course of the procedure.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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19. Concerning this form of investment, the Court has stated that national measures must be regarded as ‘restrictions’ within the meaning of Article 56(1) EC if they are liable to prevent or limit the acquisition of shares in the undertakings concerned or to deter investors of other Member States from investing in their capital (see Commission v Portugal , paragraph 45; Commission v France , paragraph 41; Commission v Spain , paragraph 61; Commission v United Kingdom , paragraph 47; Commission v Italy , paragraphs 30 and 31; and Commission v Netherlands , paragraph 20).
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41 Even though the rules in issue may not give rise to unequal treatment, they are liable to impede the acquisition of shares in the undertakings concerned and to dissuade investors in other Member States from investing in the capital of those undertakings. They are therefore liable, as a result, to render the free movement of capital illusory (see, in that regard, Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraph 25, and Case C-302/97 Konle [1999] ECR I-3099, paragraph 44).
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32. It follows from the above analysis that the term database as defined in Article 1(2) of the directive refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.
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43. Nor may such use affect the value of the trade mark by taking unfair advantage of its distinctive character or repute ( BMW , paragraph 52).
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52 Such advertising is not essential to the further commercialisation of goods put on the Community market under the trade mark by its proprietor or with his consent or, therefore, to the purpose of the exhaustion rule laid down in Article 7 of the directive. Moreover, it is contrary to the obligation to act fairly in relation to the legitimate interests of the trade mark owner and it affects the value of the trade mark by taking unfair advantage of its distinctive character or repute. It is also incompatible with the specific object of a trade mark which is, according to the case-law of the Court, to protect the proprietor against competitors wishing to take advantage of the status and reputation of the trade mark (see, inter alia, Case C-10/89 HAG GF [1990] ECR I-3711, `HAG II', paragraph 14).
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46 FOR THESE REASONS IT MUST BE HELD THAT THE FACT THAT THE FIXING OF THE MONETARY COMPENSATORY AMOUNTS WHICH RESULT FROM THE SYSTEM OF CALCULATING THOSE COMPENSATORY AMOUNTS ON PRODUCTS PROCESSED FROM MAIZE CONTAINED IN REGULATION NO 938/77 HAS BEEN FOUND INVALID DOES NOT ENABLE THE CHARGING OR PAYMENT OF MONETARY COMPENSATORY AMOUNTS BY THE NATIONAL AUTHORITIES ON THE BASIS OF THAT REGULATION TO BE CHALLENGED AS REGARDS THE PERIOD PRIOR TO THE DATE OF THIS JUDGMENT .
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61
Although it falls to the referring court to assess whether the amount of the penalty does not go beyond what is necessary to attain the objectives set out in the previous paragraph (judgment of 20 June 2013, Rodopi-M 91, C‑259/12, EU:C:2013:414, paragraph 39), it is appropriate to inform that court of certain aspects of the main proceedings which would enable it to determine whether the penalty imposed on Mr Farkas, on the basis of the provisions of the Law on the Tax Procedure Code, is compatible with the principle of proportionality.
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39. It is, however, for the national court to determine whether the amount of the penalty goes beyond what is necessary to attain the objectives stated in the previous paragraph.
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30. Under the second subparagraph of Article 27(2) of Directive 2004/38, the issue of any expulsion measure is conditional on the requirement that the personal conduct of the individual concerned must represent a genuine, present threat affecting one of the fundamental interests of society or of the host Member State, which implies, in general, the existence in the individual concerned of a propensity to act in the same way in the future.
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31. In that regard, it must be stated that the third indent of Article 9(2)(e) of the Sixth Directive refers not to professions, such as those of lawyers, consultants, accountants or engineers, but to services. The Community legislature has used the professions mentioned in that provision as a means of defining the categories of services to which it refers (see von Hoffmann , paragraph 15). The expression ‘other similar services’ refers not to some common feature of the disparate activities mentioned in the third indent of Article 9(2)(e) of the Sixth Directive but to services similar to those of each of those activities, viewed separately. A service must thus be regarded as similar to those of one of the activities mentioned in that provision when they both serve the same purpose (see, to that effect, Case C‑167/95 Linthorst, Pouwels en Scheres [1997] ECR I‑1195, paragraphs 19 to 22, and von Hoffmann , paragraphs 20 and 21).
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21 Moreover, if the legislature had intended that provision to cover the medical profession generally, as an activity typically carried out in an independent manner, it would have included it in the list, since, as the national court and the Advocate General in paragraph 22 of his Opinion pertinently observe, other provisions of the Sixth Directive, such as in particular the transitional exception provided pursuant to Article 28(3)(b) in conjunction with Annex F, specifically mention the services of veterinary surgeons.
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52. Dans ces conditions, il y a lieu de relever que de tels objectifs peuvent être légitimement poursuivis par les États membres.
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42 The Court has also held that it follows from the wording of Article 5(2) itself that the legitimate expectations of the person liable attract the protection provided for in that article only if it was the competent authorities `themselves' which created the basis for those expectations. Thus, only errors attributable to acts of those authorities confer entitlement to the waiver of post-clearance recovery of customs duties (Mecanarte, paragraph 23, and Faroe Seafood, paragraph 91).
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23 It follows, in the third place, that the legitimate expectations of the person liable attract the protection provided for in Article 5(2) of Regulation No 1697/79 only if it was the competent authorities "themselves" which created the basis for the expectations of the person liable. Thus, only errors attributable to acts of the competent authorities which could not reasonably have been detected by the person liable create entitlement to the waiver of post-clearance recovery of customs duties.
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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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83. Thus, recital 10 in the preamble to Directive 2001/29 confirms that the investment required to produce products such as films or multimedia products is considerable. Adequate legal protection of intellectual property rights is therefore necessary in order to provide the opportunity for satisfactory returns on this investment (see also, to this effect, Case C‑61/05 Commission v Portugal [2006] ECR I‑6779, paragraph 27).
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27. In addition, under the seventh recital in the preamble to the Directive, the protection of the exclusive rental rights of the producers of phonograms and films is justified on the grounds of the necessity to safeguard the recoupment of extremely high and risky investments which are required for their production and which are essential if authors are to go on creating new works (see, in particular, as regards specifically the producers of phonograms, Metronome Musik , paragraph 24).
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16 The Court of First Instance was therefore correct in holding that it could consider first of all whether the appellant had established the existence of harm not yet made good by the compensation which had been granted him pursuant to Article 73 of the Staff Regulations.
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25. It must be borne in mind, next, that that reduction mechanism consists in imposing the payment of a penalty, the amount of which is determined in proportion to the amount which would have been unduly received by the exporter had the requested refund been granted. It concerns a penalty which forms an integral part of the export refund scheme and is not criminal in nature (see, to that effect, Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 43; AOB Reuter , paragraph 18; and Case C-489/10 Bonda [2012] ECR, paragraph 30).
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30. In support of that view, the Court further observed that the rules breached are aimed solely at economic operators who have freely chosen to take advantage of an agricultural aid scheme (see Maizena and Others , paragraph 13; Germany v Commission , paragraph 26; and Käserei Champignon Hofmeister , paragraph 41). It added that, in the context of a European Union aid scheme in which the granting of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness, the penalty imposed in the event of non-compliance with those requirements constitutes a specific administrative instrument forming an integral part of the scheme of aid and intended to ensure the sound financial management of public funds of the European Union ( Käserei Champignon Hofmeister , paragraph 41).
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132 Whereas Article 61 of the EC Treaty (now, after amendment, Article 51 EC) precludes the Treaty provisions on the freedom to provide services from applying to transport services, the latter being governed by the provisions of the title concerning transport, there is no article in the Treaty which precludes its provisions on freedom of establishment from applying to transport.
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39
Pursuant to the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court does not, in principle, have jurisdiction with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions (judgments of 24 June 2014 in Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 69, and 12 November 2015 in Elitaliana v Eulex Kosovo, C‑439/13 P, EU:C:2015:753, paragraph 41).
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69. As regards, first of all, the question of the Court’s jurisdiction to rule on the second plea, it must be noted, as the Council submits, that it is apparent from the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU that the Court does not, in principle, have jurisdiction with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions.
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21. In any event, the documents made available on 14 January 1998 following the order in NMH Stahlwerke , cited above, were produced sufficiently in advance of the hearing to allow the appellant to examine them and adopt a position on their content.
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20 Such a practice is discriminatory because it encourages proprietors of patents to manufacture patented products within the national territory rather than to import them from other Member States. It is therefore capable of hindering intra-Community trade directly or indirectly, actually or potentially, and hence constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 30 of the Treaty (judgment in Case 8/74 Dassonville [1974] ECR 837, paragraph 5).
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5 ALL TRADING RULES ENACTED BY MEMBER STATES WHICH ARE CAPABLE OF HINDERING, DIRECTLY OR INDIRECTLY, ACTUALLY OR POTENTIALLY, INTRA-COMMUNITY TRADE ARE TO BE CONSIDERED AS MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS .
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48. Thus, unlike sickness benefits stricto sensu , benefits relating to the risk of reliance on care – being generally long-term benefits – are not in principle intended to be paid on a short-term basis. Moreover, as follows in particular from the circumstances of the case-law mentioned in paragraphs 45 and 46 above, it cannot be ruled out that, although benefits relating to the risk of reliance on care must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71, they may, particularly as regards the details of their application, display characteristics which in practice also resemble to a certain extent the invalidity and old-age branches referred to in Article 4(1)(b) and (c), without being strictly identifiable with either of them.
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48. In making that assessment, it is necessary to take into account all the protected interests involved and, in particular, the right to property (see, to that affect, Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 79) and also the welfare requirements of animals (see, to that effect, Jippes and Others , paragraph 79).
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79. Second, whilst the fundamental rights at issue in the main proceedings are expressly recognised by the ECHR and constitute the fundamental pillars of a democratic society, it nevertheless follows from the express wording of paragraph 2 of Articles 10 and 11 of the Convention that freedom of expression and freedom of assembly are also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under those provisions and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 26, Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 42, and Eur. Court HR, Steel and Others v. The United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, § 101).
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19 According to Article 14(1) of Regulation No 2261/84, each producer Member State is to apply a system of checks to ensure that the product in respect of which aid is granted is eligible for such aid.
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32. As an exception to the rule referred to in paragraph 30 above, Article 221(4) of the Customs Code provides that the customs authorities may, under the conditions set out in the provisions in force, make such communication after the expiry of that period where the fact that those authorities have been unable to determine the exact amount of duty legally due is attributable to an act which could give rise to criminal court proceedings ( Snauwaert and Others , paragraph 29).
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29. As an exception to that rule, the second sentence of Article 221(3) stipulates that the customs authorities may, in so far as the provisions in force so allow, make such communication after the expiry of that period, where the customs authorities were unable, as a result of an act that could give rise to criminal court proceedings, to determine the exact amount of duty legally due.
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76. In the present case, the prohibition on the use of the sales name "chocolate" under which cocoa and chocolate products containing vegetable fats other than cocoa butter are lawfully manufactured in the Member State of production may compel the traders concerned to adjust the presentation of their products according to the place where they are to be marketed and consequently to incur additional packaging costs. It is therefore liable to obstruct intra-Community trade (see, to that effect, Mars , paragraph 13, and Ruwet , paragraph 48, both cited above).
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21. However, as is apparent from the 18 th recital in the preamble thereto, Directive 85/374 does not seek exhaustively to harmonise the sphere of liability for defective products beyond the matters regulated by it (Case C‑285/08 Moteurs Leroy Somer [2009] ECR I‑4733, paragraphs 24 and 25).
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24. However, the fact remains that Directive 85/374 can preclude a system of liability such as that at issue in the main proceedings only on condition that that system is covered by the scope of application of that directive.
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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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161
So far as the tax aspect is concerned, the fact that the recipients of the service concerned obtain a tax advantage does not affect the fact that the service is provided by the issuer for remuneration, so that the activity concerned, which thus corresponds to the definition of a service contained in the provisions of the Treaty relating to the freedom to provide services, comes within the scope of those provisions (see, to that effect, judgments in Skandia and Ramstedt, C‑422/01, EU:C:2003:380, paragraphs 22 to 28, and Commission v Germany, C‑318/05, EU:C:2007:495, paragraphs 65 to 82).
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70. It is important to note in that context that it is not necessary for such private financing to be provided mainly by the pupils or their parents. According to consistent case-law, Article 50 EC does not require that the service be paid for by those for whom it is performed (see, in particular, Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraph 16; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraph 56; Smits and Peerbooms , paragraph 57; and Skandia and Ramstedt , paragraph 24).
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42
Thirdly, it clearly follows from the schematic interpretation of the provisions in question adopted by the Court of Justice that, although the time limit set for the Commission to make its finding has been amended many times by the applicable rules, the EU legislature has, on each occasion, intended to impose on it a precise time limit, taking the view that it was in the interest of both the EU and its Member States that the end of the financial corrections procedure be foreseeable, which implies the setting of a predetermined time-limit for adopting the final decision, while leaving the Commission sufficient time to adopt that decision (see, to that effect, judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 84 to 86 and 88, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 84 to 86 and 88).
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31. According to that case-law, the aim of Directive 2001/23 is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive criterion for establishing the existence of a transfer within the meaning of that directive is, therefore, whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (see, inter alia, Case 24/85 Spijkers [1986] ECR 1119, paragraphs 11 and 12; Case C-13/95 Süzen [1997] ECR I-1259, paragraph 10 and Case C‑340/01 Abler and Others [2003] ECR I-14023, paragraph 29).
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29. The aim of Directive 77/187 is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive criterion for establishing the existence of a transfer within the meaning of the directive is, therefore, whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (Case 24/85 Spijkers [1986] ECR 1119, paragraphs 11 and 12, and Case C-13/95 Süzen [1997] ECR I-1259, paragraph 10).
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80. To this end, the Framework Agreement sets out, in particular in clause 5(1)(a) to (c), various measures intended to prevent such abuse, and the Member States are required to introduce at least one of those measures in their national law.
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34. It should be recalled that it is settled case-law that implementation of the obligations imposed on Member States by the Treaty or secondary legislation cannot be made subject to a condition of reciprocity (Case C-405/01 Colegio de Oficiales de la Marina Mercante Española [2003] ECR I-10391, paragraph 61 and the case‑law cited).
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61. Furthermore, it is evident from settled case-law that implementation of the obligations imposed on Member States by the Treaty or secondary legislation cannot be made subject to a condition of reciprocity (see, among others, Case C-163/99 Portugal v Commission [2001] ECR I-2613, paragraph 22, and Case C-142/01 Commission v Italy [2002] ECR I-4541, paragraph 7).
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34. In the light of the foregoing, the answer to the question is that Article 1(3) of Directive 89/665 must be interpreted to the effect that, if, in review proceedings, the successful tenderer – having won the contract and filed a counterclaim – raises a preliminary plea of inadmissibility on the grounds that the tenderer seeking review lacks standing to challenge the award because its bid should have been rejected by the contracting authority by reason of its non-conformity with the technical requirements under the tender specifications, that provision precludes that action for review from being declared inadmissible as a consequence of the examination of that preliminary plea in the absence of a finding as to whether those technical requirements are met both by the bid submitted by the successful tenderer, which won the contract, and by the bid submitted by the tenderer which brought the main action for review.
Costs
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29. In the absence of a definition of the term ‘debt collection and factoring’ in the Sixth Directive, it is necessary to view the final words of Article 13B(d)(3) of the Sixth Directive in their context and to interpret them in the light of the spirit of the provision in question and, more generally, of the scheme of that directive ( MKG-Kraftfahrzeuge-Factoring , paragraph 70; see to that effect, also, Case 173/88 Henriksen [1989] ECR 2763, paragraph 11; and Case C‑16/93 Tolsma [2004] ECR I‑743, paragraph 10).
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10 To interpret the term "supply of services effected for consideration" in that article, the article must be seen in its context, and account must be taken of the other provisions of the Sixth Directive and also of the Court' s case-law, including its decisions on the Second Council Directive 67/228/EEC of 11 April 1967 on the harmonization of legislation of Member States concerning turnover taxes - Structure and procedures for application of the common system of value added tax (Official Journal, English Special Edition 1967, p. 16, hereinafter referred to as "the Second Directive"), which had the same objectives as the Sixth Directive and was replaced by that directive.
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36. Par ailleurs, les notes explicatives du SH relatives à la position 7318 relèvent que les boulons et les vis à métaux de tout genre sont compris dans cette position «quels que soient leur forme et leur usage». L’argument selon lequel le classement de l’article en cause dans la position 7318 de la NC serait exclu au motif qu’il n’est pas conçu pour tourner sur son propre axe ne saurait, par conséquent, être retenu.
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24
It should be noted here that the Court, when answering questions referred for a preliminary ruling, must take account, under the division of jurisdiction between the EU judicature and the national courts and tribunals, of the factual and legislative context of the questions as described in the order for reference (judgment of 26 October 2017, Argenta Spaarbank, C‑39/16, EU:C:2017:813, paragraph 38).
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38
In addition, it should be noted that it is not for the Court, in the context of a request for a preliminary ruling, to give a ruling on the interpretation of provisions of domestic law and to decide whether the interpretation given by the national court of those provisions is correct. The Court must take account, under the division of jurisdiction between the European Union Courts and the national courts, of the factual and legislative context in which the questions put to it are set, as described in the order for reference (judgment of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 48 and the case-law cited).
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10 Regulation No 2241/87 therefore imposes a joint responsibility on Member States to monitor the system of catch limitations . In the same vein, Article 1(3 ) of the regulation requires Member States to coordinate their control activities and to introduce "measures whereby their competent authorities and the Commission may be regularly informed on a reciprocal basis of the experience acquired ". Article 9a merely adds further details concerning those obligations to provide information .
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30. According to settled case-law, it is for the competent national authorities to show, in each case, that their rules or administrative practices are necessary to effectively protect the interests envisaged by Article 30 EC or to meet imperative requirements and, where appropriate, that the marketing of the products in question poses a risk to public health (see, to that effect, Case 304/84 Muller and Others [1986] ECR 1511, paragraph 25, Beer Purity , cited above, paragraph 46, and Joined Cases C-13/91 and C-113/91 Debus [1992] ECR I-3617, paragraph 18).
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18 Secondly, it should be remembered that, as it follows in particular from the judgments in Case 304/84 Ministère Public v Muller, in Case 178/84 Commission v Germany and in Case C-42/90 Bellon, all cited above, and in Case 227/82 Van Bennekom [1983] ECR 3883, it is for the national authorities to demonstrate that their legislation is justified on grounds relating to the protection of the health of their population.
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29 Any obligation systematically to notify such information is contrary to the freedom to market insurance products within the Community, which Directives 92/94 and 92/96 are designed to achieve.
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