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45. With a view to determining the exact scope of Article 41(1) of the Additional Protocol in a situation such as that at issue in the main proceedings, it must be recalled, first, that, in accordance with consistent case-law, the provision has direct effect. It lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill’ clause, which contains an obligation entered into by the contracting parties which amounts in law to a duty not to act (see Savas , paragraphs 46 to 54 and 71, second indent; Abatay and Others , paragraphs 58, 59 and 117, first indent, and Case C‑16/05 Tum and Dari [2007] ECR I‑7415, paragraph 46). Consequently, the rights which Article 41(1) of the Additional Protocol confers on the Turkish nationals to whom it applies may be relied on before the courts of the Member States (see, in particular, Savas , paragraph 54, and Tum and Dari , paragraph 46).
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46. In that context, it is not disputed that Article 41(1) of the Additional Protocol has direct effect in the Member States, so that the rights which it confers on the Turkish nationals to whom it applies may be relied on before the national courts to prevent the application of inconsistent rules of national law. That provision lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill’ clause, which contains an obligation entered into by the contracting parties which amounts in law to a duty not to act (see Savas , paragraphs 46 to 54 and 71, second indent, and Joined Cases C-317/01 and C-369/01 Abatay and Others [2003] ECR I-12301, paragraphs 58, 59 and 117, first indent).
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7. Or, s’il incombe à la Commission, dans le cadre d’une procédure en manquement engagée en vertu de l’article 226 CE, d’établir l’existence du manquement allégué (arrêts du 12 septembre 2000, Commission/Pays-Bas, C-408/97, Rec. p. I-6417, point 15, et du 11 juillet 2002, Commission/Espagne, C-139/00, Rec. p. I-6407, point 45), il convient de constater en l’occurrence que, en se bornant, dans son mémoire en réplique, à réitérer son grief selon lequel le Royaume de Belgique n’avait pas pris, à l’expiration du délai imparti dans l’avis motivé, les mesures nécessaires pour assurer la transposition de la directive, la Commission n’a fourni à la Cour aucun élément lui permettant de vérifier le bien-fondé de son allégation relative à la non-transposition de l’article 5, paragraphe 2, de la directive par l’article 57, paragraphe 2, de la loi organique.
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48. It should be recalled at the outset that Article 10 of Directive 69/335, read in the light of the last recital in the preamble to the directive, prohibits taxes with the same characteristics as a capital duty (see, in particular, Joined Cases C‑71/91 and C‑178/91 Ponente Carni and Cispadana Costruzioni [1993] ECR I‑1915, paragraph 29, and Case C‑2/94 Denkavit Internationaal and Others [1996] ECR I‑2827, paragraph 23).
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23 It should be recalled at the outset that Article 10 of Directive 69/335, read in the light of the last recital in the preamble to the directive, prohibits in particular indirect taxes with the same characteristics as the capital duty. It thus envisages, inter alia, taxes in any form which are payable in respect of the formation of a capital company or an increase in its capital [Article 10(a)], or in respect of registration or any other formality required before the commencement of business, to which a company may be subject by reason of its legal form [Article 10(c)]. As the Advocate General has pointed out in paragraph 44 of his Opinion, that latter prohibition is justified by the fact that, even though the taxes in question are not imposed on capital contributions as such, they are nevertheless imposed on account of formalities connected with the company' s legal form, in other words on account of the instrument employed for raising capital, so that their continued existence would similarly risk frustrating the aims of the directive.
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34. Toutefois, il convient de tenir compte, dans le cadre de l’application de ces critères, du fait que la perception du consommateur moyen n’est pas nécessairement la même dans le cas d’une marque tridimensionnelle, constituée par l’apparence du produit lui-même, que dans le cas d’une marque verbale ou figurative, qui consiste en un signe indépendant de l’aspect des produits qu’elle désigne (arrêt du 4 octobre 2007, Henkel/OHMI, C-144/06 P, Rec. p. I-8109, point 36 et jurisprudence citée).
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43
As regards the principle of equal treatment, it must be noted that that principle 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. The elements which characterise various situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter of the provisions in question and of the aim they pursue, whilst account must be taken for that purpose of the principles and objectives of the field to which the measure at issue relates (judgments of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraphs 23 and 26, and of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraphs 41 and 42).
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42
In accordance with settled case-law of the Court, the factors which distinguish different situations, and the question whether those situations are comparable, must be determined and assessed in the light of the subject matter of the provisions in question and of the aim pursued by them, whilst account must be taken for that purpose of the principles and objectives of the field in question (see, to that effect, judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26 and the case-law cited).
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46. En effet, la décision-cadre s’applique également aux sanctions pécuniaires infligées par des autorités administratives. Par conséquent, ainsi que le souligne à juste titre le gouvernement néerlandais, il peut être exigé, selon les particularités des systèmes juridictionnels des États membres, qu’une phase administrative préalable ait lieu. Toutefois, l’accès à une juridiction compétente notamment en matière pénale, au sens de la décision-cadre, ne doit pas être soumis à des conditions qui le rendent impossible ou excessivement difficile (voir, par analogie, arrêt du 28 juillet 2011, Samba Diouf, C‑69/10, Rec. p. I‑7151, point 57).
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20. In Case C-271/00 Baten [2002] ECR I-10489, paragraph 37, the Court held that the first paragraph of Article 1 of the Convention must be interpreted as meaning that the concept of " civil matters" encompasses an action under a right of recourse whereby a public body seeks from a person governed by private law recovery of sums paid by it by way of social assistance to the divorced spouse and the child of that person, provided that the basis and the detailed rules relating to the bringing of that action are governed by the rules of the ordinary law in regard to maintenance obligations. The Court added however that, where the action under a right of recourse is founded on provisions by which the legislature conferred on the public body a prerogative of its own, that action cannot be regarded as being brought in " civil matters" .
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37 In light of the foregoing considerations, the reply to the first question must be that the first paragraph of Article 1 of the Brussels Convention must be interpreted as meaning that the concept of `civil matters' encompasses an action under a right of recourse whereby a public body seeks from a person governed by private law recovery of sums paid by it by way of social assistance to the divorced spouse and the child of that person, provided that the basis and the detailed rules relating to the bringing of that action are governed by the rules of the ordinary law in regard to maintenance obligations. Where the action under a right of recourse is founded on provisions by which the legislature conferred on the public body a prerogative of its own, that action cannot be regarded as being brought in `civil matters'.
Second question
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61. Moreover, concerning the consequences of the refusal by the addressee of a document to accept it on the ground that that document was not accompanied by a translation in a language which he understands or in the official language of the receiving Member State, the Court has already held, w ith respect to Regulation No 1348/2000, which preceded Regulation No 1393/2007, that it was necessary not to declare the procedure invalid, but to allow, by contrast, the sender to remedy the lack of the required document by sending the requested translation (see, to that effect, judgment in Leffler , C‑443/03, EU:C:2005:665, paragraphs 38 and 53).
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47. In that regard, it should be noted that the situation of undertakings operating in different transport sectors is not comparable since the different modes of transport – having regard to the manner in which they operate, the conditions governing their accessibility and the distribution of their networks – are not interchangeable as regards the conditions of their use. In those circumstances, the EU legislature was entitled to establish rules for providing a level of customer protection that varied according to the transport sector concerned (Case C‑12/11 McDonagh [2013] ECR I‑0000, paragraphs 56 and 57).
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57. In those circumstances, the European Union legislature was able to establish rules providing for a level of customer protection that varied according to the transport sector concerned.
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49 Furthermore, it is undisputed that a number of acts of vandalism were filmed by television cameras, that the demonstrators' faces were often not covered and that the groups of farmers responsible for the violent demonstrations are known to the police.
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47. According to settled case-law, the general principle of legal certainty, which is a fundamental principle of Community law, requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly (see Case 169/80 Gondrand and Garancini [1981] ECR 1931, paragraph 17; Case C‑110/03 Belgium v Commission [2005] ECR I‑2801, paragraph 30; Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 68; and Intertanko and Others , paragraph 69).
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68. The principle of legal certainty is a fundamental principle of Community law which requires, in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly (see Case 169/80 Gondrand Frères and Garancini [1981] ECR 1931; Case C-143/93 Van Es Douane Agenten [1996] ECR I-431, paragraph 27; and Case C-110/03 Belgium v Commission [2005] ECR I-2801, paragraph 30).
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À cet égard, il y a lieu de constater que les décisions et les règlements relatifs aux mesures restrictives concernant la
République islamique d’Iran constituent une succession d’actes modifiés fréquemment et remplacés régulièrement, afin d’en
améliorer la clarté et la lecture. Toutefois, certaines dispositions sont similaires dans l’ensemble de ces décisions et de
ces règlements (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 61).
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99. As regards the fifth question, it is appropriate to recall that the general prohibition of all discrimination on grounds of nationality laid down by Article 12 EC applies independently only to situations governed by Community law for which the Treaty lays do wn no specific rules of non‑discrimination (see, in particular, Joined Cases C-397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 38). However, in relation to the right of establishment and the free movement of capital, the principle of non-discrimination was implemented by Articles 43 EC and 56 EC respectively. The fifth question must therefore be read as referring only to the latter provisions.
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38 It follows from the Court's case-law that the general prohibition of all discrimination on grounds of nationality laid down by Article 6 of the Treaty applies independently only to situations governed by Community law for which the Treaty lays down no specific non-discrimination rules (Case 305/87 Commission v Greece [1989] ECR 1461, paragraphs 12 and 13, Case C-1/93 Halliburton Services [1994] ECR I-1137, paragraph 12, Royal Bank of Scotland, cited above, paragraph 20, and Baars, cited above, paragraph 23).
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52. Par ailleurs, l’article 9, paragraphe 1, sous b), de la directive précise qu’une accumulation de diverses mesures, y compris des violations des droits de l’homme, qui est suffisamment grave pour affecter un individu d’une manière comparable à ce qui est indiqué à l’article 9, paragraphe 1, sous a), de la directive doit également être considérée comme une persécution.
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29
It follows from the clear terms of Article 5(2)(b) of Directive 2001/29 that the private copying exception is intended exclusively for natural persons making, or having the capacity to make, reproductions of protected works or subject matter for private use and for purposes neither directly nor indirectly commercial (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraphs 43 to 45 and 54 to 56, and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraphs 22 to 25 and 64).
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24. In that regard, it is unnecessary to show that natural persons in fact make copies for private purposes with the aid of such equipment. Those persons are rightly presumed to benefit fully from the making available of that equipment, that is to say, they are deemed to take full advantage of the functions associated with that equipment, including copying (see, to that effect, judgment in Padawan , EU:C:2010:620, paragraphs 54 and 55).
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32. The right to deduct input VAT for certain transactions in respect of other output transactions carried out in another Member State therefore depends, under that provision, on whether that right to deduct exists where all of those transactions are carried out within the territory of the same Member State.
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It follows that the grounds which may restrict the disclosure of information, such as that communicated by the appellants to the Commission with a view to obtaining leniency from it, are not restricted to those arising solely from the rules intended to afford specific protection against disclosure to the public of that information and that the hearing officer must, therefore, examine any objection based on a ground, arising from rules or principles of EU law, relied on by the interested person in order to claim protection of the confidentiality of the contested information (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 55).
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55
It follows that the grounds which may restrict the disclosure of information, such as that communicated by the appellant to the Commission with a view to obtaining leniency from it, are not restricted to those arising solely from the rules intended to afford specific protection against disclosure to the public of that information and that the hearing officer must, therefore, examine any objection based on a ground, arising from rules or principles of EU law, relied on by the interested person in order to claim protection of the confidentiality of the contested information.
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24 Those judgments are merely the expression in individual cases of a principle which is inherent in the fundamental freedoms of the Treaty.
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30. Nevertheless, it is clear from the case-l aw of the Court that, in certain circumstances, several formally distinct services, which could be supplied separately and thus give rise in turn to taxation or exemption, must be considered to be a single transaction when they are not independent (see Case C-425/06 Part Service [2008] ECR I-897, paragraph 51, Case C-276/09 Everything Everywhere [2010] ECR I-12359, paragraph 23). There is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (Case C-41/04 Levob Verzekeringen and OV Bank [2005] ECR I-9433 paragraph 22, and Case C-111/05 Aktiebolaget NN [2007] ECR I-2697, paragraph 23). Such is the case where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service (Case C-349/96 CPP [1999] ECR I-973, paragraph 30, and Part Service , paragraph 52).
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23. Moreover, in certain circumstances, several formally distinct services, which could be supplied separately and thus give rise, in turn, to taxation or exemption, must be considered to be a single transaction when they are not independent (see Case C‑425/06 Part Service [2008] ECR I‑897, paragraph 51; Case C‑572/07 RLRE Tellmer Property [2009] ECR I‑4983, paragraph 18; and Don Bosco Onroerend Goed , paragraph 36).
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63. In applying those principles, the undertaking in question can be viewed as carrying out the essential part of its activities with the controlling authority within the meaning of Teckal only if that undertaking’s activities are devoted principally to that authority and any other activities are only of marginal significance.
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81
In those circumstances, it must be held that, to the extent that the consequences that Bionorica draws from the distortion, by the General Court, of the facts concerning it arise from a misreading of the order in Case T‑619/14, the arguments advanced by the latter in that regard must be rejected as ineffective in that they could not lead to the setting aside of that order (see, to that effect, judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 87 and 88, and of 26 July 2017, AGC Glass Europe and Others v Commission, C‑517/15 P, not published, EU:C:2017:598, paragraphs 63 to 65).
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While it is true that those recitals were presented by the hearing offer in the form of general observations made ‘as a preliminary point’ and that the hearing officer stated several times that he was not competent to deal with the appellants’ arguments alleging breach of the principles of protection of legitimate expectations and equal treatment, it is nevertheless the case that, in view of those recitals, it cannot be considered that it is obvious from the decision at issue that the hearing officer did not take account of those arguments.
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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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198. In that regard, it must be borne in mind that the Court has already held that, in order to assess whether the pricing practices of a dominant undertaking are likely to eliminate a competitor contrary to Article 82 EC, it is necessary to adopt a test based on the costs and the strategy of the dominant undertaking itself (see AKZO v Commission , paragraph 74, and France Télécom v Commission , paragraph 108).
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108. In order to assess the lawfulness of the pricing policy applied by a dominant undertaking, the Court, in paragraph 74 of AKZO v Commission , relied on pricing criteria based on the costs incurred by the dominant undertaking and on its strategy.
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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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88. The latter decision concerned the transfer of passenger data from the reservation systems of air carriers situated in the territory of the Member States to the United States Department of Homeland Security, Bureau of Customs and Border Protection. The Court held that that the subject-matter of that decision was data-processing which was not necessary for a supply of services by the air carriers, but which was regarded as necessary for safeguarding public security and for law-enforcement purposes. In paragraphs 57 to 59 of the judgment in Parliament v Council and Commission , the Court held that such data-processing was covered by Article 3(2) of Directive 95/46, according to which that directive does not apply, in particular, to the processing of personal data relating to public security and the activities of the State in areas of criminal law. The Court accordingly concluded that Decision 2004/535 did not fall within the scope of Directive 95/46.
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58. The Court held in paragraph 43 of Lindqvist , which was relied upon by the Commission in its defence, that the activities mentioned by way of example in the first indent of Article 3(2) of the Directive are, in any event, activities of the State or of State authorities and unrelated to the fields of activity of individuals. However, this does not mean that, because the PNR data have been collected by private operators for commercial purposes and it is they who arrange for their transfer to a third country, the transfer in question is not covered by that provision. The transfer falls within a framework established by the public authorities that relates to public security.
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31. Il convient encore de préciser qu’un intérêt transfrontalier certain existe sans qu’il soit requis qu’un opérateur économique ait effectivement manifesté son intérêt. Il en est spécialement ainsi lorsque, comme dans le cadre de l’affaire au principal, le litige porte sur l’absence de transparence ayant entouré la convention en cause. En effet, dans un tel cas, les opérateurs économiques établis dans d’autres États membres n’ont pas de réelle possibilité de manifester leur intérêt à obtenir cette concession (voir, en ce sens, arrêts Coname, précité, point 18, et du 13 octobre 2005, Parking Brixen, C‑458/03, Rec. p. I‑8585, point 55).
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44. Further, it follows from Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑14887, paragraphs 65, 76 and 124, that a national measure concerning an arrangement characterised by the sale of goods via the Internet and the delivery of those goods to the customer’s home is to be examined only with regard to the rules relating to the free movement of goods and, consequently, with regard to Articles 34 TFEU and 36 TFEU.
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124. In the light of the foregoing, the answer to Question 1(b) must be that Article 30 EC may be relied on to justify a national prohibition on the sale by mail order of medicinal products the sale of which is restricted to pharmacies in the Member State concerned in so far as the prohibition covers medicinal products subject to prescription. However, Article 30 EC cannot be relied on to justify an absolute prohibition on the sale by mail order of medicinal products which are not subject to prescription in the Member State concerned.
Reimportation of medicinal products (Question 1(c))
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27. It should be noted at the outset 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 found in their objective characteristics and properties as defined in the wording of the relevant heading of the Combined Nomenclature and of the notes to the sections or chapters (see, inter alia, Joined Cases C‑208/06 and C‑209/06 Medion and Canon Deutschland [2007] ECR I‑7963, paragraph 34).
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24. The Court notes, as a preliminary point, that on 27 March 2001, that is, two days before the contested national decisions, the Commission adopted Decision 2001/246, based on Article 10 of Directive 90/425 and Article 13(3) of Directive 85/511. By that decision 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 laid down in Article 4 or Article 5 of Directive 85/511. According to the fourth recital in the preamble to that decision, the Kingdom of the Netherlands had, in addition to the measures within the framework of Directive 85/511, begun, as a precautionary measure, the pre-emptive killing of susceptible animals on holdings situated in close proximity to ‘infected or suspect’ holdings (see Joined Cases C-96/03 and C-97/03 Tempelman and van Schaijk [2005] ECR I-1895, paragraphs 37 and 38).
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38. The reason for the pre-emptive killing was stated as follows in the fourth recital to Decision 2001/246:
‘In addition to the measures within the framework of Directive 85/511/EEC, the Netherlands apply as a precautionary measure the pre-emptive killing of susceptible animals in holdings situated in close proximity to infected or suspect holdings, taking into account the epidemiological situation and the high density of susceptible animals in certain parts of the territory.’
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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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54. In any event, since the Court has held that a Member State may, in the interests of public policy, consider that the use of drugs constitutes a danger for society such as to justify special measures against foreign nationals who contravene its laws on drugs (see Case C‑348/96 Calfa [1999] ECR I‑11, paragraph 22, and Orfanopoulos and Oliveri , paragraph 67), it must follow that dealing in narcotics as part of an organised group is a fortiori covered by the concept of ‘public policy’ for the purposes of Article 28(2) of Directive 2004/38.
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22 In this respect, it must be accepted that a Member State may consider that the use of drugs constitutes a danger for society such as to justify special measures against foreign nationals who contravene its laws on drugs, in order to maintain public order.
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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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32. Therefore, in accordance with settled case-law, that concept must be given an independent and uniform interpretation, having regard to the usual meaning of those words, the context of those articles and the objective pursued by the legislation of which they are part (see, inter alia, Case C‑420/11 Leth [2013] ECR, paragraph 24 and the case-law cited).
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24. As regards the term ‘material assets’ within the meaning of Article 3 of Directive 85/337, it must be recalled that, according to settled case‑law, it follows from the need for a uniform application of European Union law that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (see Case C-287/98 Linster [2000] ECR I‑6917, paragraph 43, and Case C-497/10 PPU Mercredi [2010] ECR I‑14309, paragraph 45).
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53. Toutefois, la circonstance que le régime portuaire espagnol poursuive un objectif légitime n’est pas suffisante pour justifier valablement la restriction constatée. En effet, conformément à une jurisprudence constante de la Cour, l’application d’une réglementation d’un État membre poursuivant un objectif légitime doit être indispensable pour garantir sa réalisation. En d’autres termes, il faut que le même résultat que celui poursuivi par cette réglementation ne puisse pas être atteint par des règles moins contraignantes que celles mises en œuvre par celle-ci (voir, notamment, arrêts Collectieve Antennevoorziening Gouda, C‑288/89, EU:C:1991:323, point 15, et Commission/Portugal, C‑518/09, EU:C:2011:501, point 65).
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31 It is settled case-law that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State, where he lawfully provides similar services (see, among others, Parodi, cited above, paragraph 18, and Arblade and Others, cited above, paragraph 33).
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33 It is settled case-law that Article 59 of the Treaty requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (see Case C-76/90 Säger [1991] ECR I-4221, paragraph 12, Case C-43/93 Vander Elst v Office des Migrations Internationales [1994] ECR I-3803, paragraph 14, Case C-272/94 Guiot [1996] ECR I-1905, paragraph 10, Case C-3/95 Reisebüro Broede v Sandker [1996] ECR I-6511, paragraph 25, and Case C-222/95 Parodi v Banque H. Albert de Bary [1997] ECR I-3899, paragraph 18).
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31. S’agissant de la seconde condition, relative à l’activité de l’entité concernée, il convient de rappeler qu’une entreprise réalise l’essentiel de son activité avec la collectivité qui la détient, au sens de l’arrêt Teckal, précité, si l’activité de cette entreprise est consacrée principalement à cette collectivité, toute autre activité ne revêtant qu’un caractère marginal (voir arrêt Carbotermo et Consorzio Alisei, précité, point 63).
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22
In that connection, as regards the alleged breach of the principle of legal certainty, it must be recalled that that requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (judgments of 10 March 2009, Heinrich, C‑345/06, EU:C:2009:140, paragraph 44, and of 29 March 2011, ArcelorMittalLuxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 68).
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68. In particular, the principle of legal certainty requires that European Union rules enable those concerned to know precisely the extent of the obligations which are imposed on them, and that those persons must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (Case C‑345/06 Heinrich [2009] ECR I‑1659, paragraph 44 and the case-law cited).
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69. A condition for integration within the meaning of the final subparagraph of Article 4(1) of the Directive may therefore be taken into account when considering an application for family reunification and the Community legislature did not contradict itself by authorising Member States, in the specific circumstances envisaged by that provision, to consider applications in the light of such a condition in the context of a directive which, as is apparent from the fourth recital in its preamble, has the general objective of facilitating the integration of third country nationals in Member States by making family life possible through reunification.
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45. Similarly, as regards certain social security benefits under national schemes other than the German care insurance scheme, the Court has held in essence that benefits that are granted objectively on the basis of a legally defined position and are intended to improve the state of health and life of persons reliant on care must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71 (see, to that effect, Case C‑215/99 Jauch [2001] ECR I‑1901, paragraph 28; Case C‑286/03 Hosse [2006] ECR I‑1771, paragraphs 38 to 44; and Case C‑299/05 Commission v Parliament and Council [2007] ECR I‑8695, paragraphs 10, 61 and 70).
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38. It follows that benefits which are granted objectively on the basis of a legally defined position and are intended to improve the state of health and life of persons reliant on care have the essential purpose of supplementing sickness insurance benefits, and must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71 ( Molenaar , paragraphs 24 and 25, and Jauch , paragraph 28).
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37. En effet, les États membres étant en droit d’imposer les plus-values qui ont été générées alors que les actifs en cause se trouvaient sur leur territoire ont le pouvoir de prévoir, pour cette imposition, un fait générateur autre que la cession effective, afin de garantir l’imposition des actifs qui ne sont pas destinés à être cédés, et moins attentatoire à la liberté d’établissement que le prélèvement au moment du transfert.
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45. Lastly, the Court has held that a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also unconstitutional, does not lose the right or escape the obligation under Article 267 TFEU to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that the declaration, that a rule of national law is unconstitutional, is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law from exercising the right conferred on it by Article 267 TFEU to refer to the Court of Justice questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law (see Mecanarte , paragraphs 39, 45 and 46).
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45 Moreover, the effectiveness of Community law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by Community law from exercising the right conferred on it by Article 177 of the EEC Treaty to refer to the Court of Justice questions concerning the interpretation or validity of Community law in order to enable it to decide whether or not a provision of domestic law was compatible with Community law.
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47. Selon une jurisprudence constante, l’imposition d’une astreinte ne se justifie en principe que pour autant que perdure le manquement tiré de l’inexécution d’un précédent arrêt jusqu’à l’examen des faits par la Cour (arrêt Commission/Irlande, C‑374/11, EU:C:2012:827, point 33 et jurisprudence citée).
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35. It follows that, in order to categorise a domestic tax measure as ‘selective’, it is necessary to begin by identifying and examining the common or ‘normal’ regime applicable in the Member State concerned. It is in relation to that common or ‘normal’ tax regime that it is necessary, secondly, to assess and determine whether any advantage granted by the tax measure at issue may be selective, by demonstrating that the measure derogates from that common regime inasmuch as it differentiates between economic operators who, in the light of the objective attributed to the tax system of the Member State concerned, are in a comparable factual and legal situation (judgment in Paint Graphos and Others , C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49).
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49. In order to classify a domestic tax measure as ‘selective’, it is necessary to begin by identifying and examining the common or ‘normal’ regime applicable in the Member State concerned. It is in relation to this common or ‘normal’ tax regime that it is necessary, secondly, to assess and determine whether any advantage granted by the tax measure at issue may be selective by demonstrating that the measure derogates from that common regime inasmuch as it differentiates between economic operators who, in light of the objective assigned to the tax system of the Member State concerned, are in a comparable factual and legal situation (see, to that effect, Case C‑88/03 Portugal v Commission [2006] ECR I‑7115, paragraph 56).
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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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32. As regards the second of the conditions referred to above, whether an error of the competent customs authorities was detectable must be assessed having regard to the nature of the error, the professional experience of the operators concerned and the care which they exercised. The nature of the error must be assessed in relation to the complexity or sufficient simplicity of the rules concerned and the period of time during which the authorities persisted in their error (Case C‑499/03 P Biegi Nahrungsmittel and Commonfood v Commission [2005] ECR I‑1751, paragraphs 47 and 48 and the case-law cited).
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47. With respect to the second of those conditions, which is the only one at issue in the present appeal, it should be recalled that, according to settled case-law, whether an error of the competent customs authorities was detectable must be assessed having regard to the nature of the error, the professional experience of the operators concerned and the care which they exercised ( Faroe Seafood and Others , paragraph 99, and Ilumitrónica , paragraph 54).
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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. Second, it is common ground that SEDL, as an economic operator active on the market which undertakes to execute works provided for in the agreement, is to be regarded as a contractor within the meaning of the Directive. As was stated in paragraph 38 of this judgment, it is irrelevant in that respect that SEDL uses subcontractors for the design and execution of the works (see, to that effect, Case C-399/98 Ordine degli Architetti and Others [2001] ECR I-5409, paragraph 90).
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90 It should be noted that Article 1(a) of the Directive does not require that, in order to be classed as a contractor, a person who enters into a contract with a contracting authority must be capable of direct performance using his own resources. The person in question need only be able to arrange for execution of the works in question and to furnish the necessary guarantees in that connection.
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48. More specifically, the introduction of a ‘price regulating’ system and/or a statutory limit on gaming machine users’ losses, was tacitly approved in principle by the Court in Glawe , in particular in view of the measures for levying VAT. In that judgment, the Court based its decision on a statutory winnings rate of 60% and stated that those winnings, which had to be paid out under German law, could not be included in the taxable amount (see Glawe , paragraph 9). Accordingly, the introduction, in substance, of a restriction on players’ losses in games of chance and, by extension, a restriction on the revenue obtained by operators of those games has already been incorporated into EU law.
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56 Moreover, the proposal for a regulation submitted by the Commission for the implementation of Decision No 3/80 in the Community contains no provision concerning the application of Article 3(1), which is taken word for word from Regulation No 1408/71, whose implementing regulation, No 574/72, likewise contains no measures for giving effect to that provision.
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29 As already mentioned, Decision No 3/80 refers in terms to certain provisions of Regulation No 1408/71 and Regulation No 574/72, while taking account, for the purposes of the implementation of those provisions, of the specific situation of Turkish workers who are or have been subject to the legislation of one or more Member States and of members of their families residing in the territory of one of the Member States.
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28. Suffice it to note in that regard that, according to established case-law, it is for the national court, to the full extent of its discretion under national law, to interpret and apply national law in conformity with the requirements of Community law. Where such an application is not possible, the national court must apply Community law in its entirety and protect rights which the latter confers on individuals, disapplying, if necessary, any contrary provision of domestic law (see, to that effect, Case 157/86 Murphy and Others [1988] ECR 673, paragraph 11, and Case C‑208/05 ITC [2007] ECR I‑181, paragraphs 68 and 69).
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40. Consequently, since Article 191(2) TFEU, which establishes the ‘polluter pays’ principle, is directed at action at EU level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation — such as that at issue in the main proceedings — in an area covered by environmental policy for which there is no EU legislation adopted on the basis of Article 192 TFEU that specifically covers the situation in question (see judgments in ERG and Others , EU:C:2010:126, paragraph 46; ERG and Others , EU:C:2010:127, paragraph 39; and order in Buzzi Unicem and Others , EU:C:2010:129, paragraph 36).
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39. Since Article 174 EC, which establishes the ‘polluter pays’ principle, is directed at action at Community level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation – such as that at issue in the main proceedings – in an area covered by environmental policy for which there is no Community legislation adopted on the basis of Article 175 EC that specifically covers the situation in question.
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122. It is likewise necessary to reject the United Kingdom’s contention that enrichment by nitrogen is more effectively addressed through measures taken pursuant to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1). A Member State cannot avoid complying with Directive 91/271 on the ground that it observes Directive 91/676, since the latter, being intended to reduce and prevent water pollution caused or induced by nitrogen from agricultural sources ( Standley and Others , paragraph 35), does not affect, inter alia, the enrichment of water by phosphorus, which Directive 91/271 seeks to remedy amongst other matters. The United Kingdom does not contest the findings of the ERM report that phosphorus inputs also lie behind the enrichment of the Wash by nutrients.
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84 It has further observed that working conditions in the different Member States are governed sometimes by provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons. Accordingly, if the scope of Article 48 of the Treaty were confined to acts of a public authority there would be a risk of creating inequality in its application (see Walrave, cited above, paragraph 19). That risk is all the more obvious in a case such as that in the main proceedings in this case in that, as has been stressed in paragraph 24 above, the transfer rules have been laid down by different bodies or in different ways in each Member State.
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19 SINCE, MOREOVER, WORKING CONDITIONS IN THE VARIOUS MEMBER STATES ARE GOVERNED SOMETIMES BY MEANS OF PROVISIONS LAID DOWN BY LAW OR REGULATION AND SOMETIMES BY AGREEMENTS AND OTHER ACTS CONCLUDED OR ADOPTED BY PRIVATE PERSONS, TO LIMIT THE PROHIBITIONS IN QUESTION TO ACTS OF A PUBLIC AUTHORITY WOULD RISK CREATING INEQUALITY IN THEIR APPLICATION .
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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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60
As regards Article 13(2) of Regulation No 1408/71, its sole purpose is to determine the national legislation applicable to persons who are in one of the situations referred to in subparagraphs (a) to (f) thereof (judgment of 11 June 1998, Kuusijärvi, C‑275/96, EU:C:1998:279, paragraph 29).
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29 It should next be emphasised that the sole purpose of Article 13(2) of Regulation No 1408/71 is to determine the national legislation applicable to persons who are in one of the situations referred to in subparagraphs (a) to (f) of that provision. As such, the provision is not intended to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch of such a scheme. As the Court has pointed out on several occasions, it is for the legislature of each Member State to lay down those conditions (see, to that effect, Kits van Heijningen, cited above, paragraph 19, and Case C-245/88 Daalmeijer [1991] ECR I-555, paragraph 15).
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37. Also, the organisation and aggregation of information published on the internet that are effected by search engines with the aim of facilitating their users’ access to that information may, when users carry out their search on the basis of an individual’s name, result in them obtaining through the list of results a structured overview of the information relating to that individual that can be found on the internet enabling them to establish a more or less detailed profile of the data subject.
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20. In that context, the regulation seeks to strengthen the legal protection of persons established in the Community, by enabling the plaintiff to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see Reisch Montage , paragraphs 24 and 25).
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25. That principle requires, in particular, that the special rules on jurisdiction be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued (see GIE Groupe Concorde and Others , paragraph 24; Besix , paragraph 26; and Owusu , paragraph 40).
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50 It must be pointed out, moreover, that the amendments made in 1995 provide proof of a renegotiation of the 1980 Agreement in its entirety. It follows that, while some provisions of the agreement were not formally modified by the amendments made in 1995 or were subject only to marginal changes in drafting, the commitments arising from those provisions were none the less confirmed during the renegotiation. In such a case, the Member States are prevented not only from contracting new international commitments but also from maintaining such commitments in force if they infringe Community law (see, to that effect, Case C-62/98 Commission v Portugal [2000] ECR I-5171 and Case C-84/98 Commission v Portugal [2000] ECR I-5215).
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93
Thus, the criteria and thresholds referred to in Article 4(2)(b) of Directive 85/337 are designed to facilitate examination of the actual characteristics of any given project in order to determine whether it is subject to the requirement to carry out an environmental impact assessment (judgments in Salzburger Flughafen, C‑244/12, EU:C:2013:203, paragraph 30, and in Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 41).
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41. Thus, the criteria and thresholds referred to in Article 4(2)(b) of Directive 85/337 are designed to facilitate examination of the actual characteristics of any given project in order to determine whether it is subject to the requirement to carry out an environmental impact assessment (judgment in Salzburger Flughafen , EU:C:2013:203, paragraph 30).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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39. In that regard, the Court has held, in particular, that to accept that the Courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, which are amongst the most important commercial partners of the European Union, have concluded from the subject-matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if accepted, would risk introducing an anomaly in the application of the WTO rules (see, in particular, judgments in Portugal v Council , C‑149/96, EU:C:1999:574, paragraphs 43 to 46; FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 119; and LVP , C‑306/13, EU:C:2014:2465, paragraph 46).
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45 However, the lack of reciprocity in that regard on the part of the Community's trading partners, in relation to the WTO agreements which are based on `reciprocal and mutually advantageous arrangements' and which must ipso facto be distinguished from agreements concluded by the Community, referred to in paragraph 42 of the present judgment, may lead to disuniform application of the WTO rules.
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18 Consequently, it should be stated in reply to the second part of the second question that the Directive requires each Member State to ensure the protection of a species of bird naturally occurring in the wild state in the European territory of the Member States to which the Treaty applies, even if the natural habitat of the species in question does not occur in the territory of the Member State concerned.
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35. As is apparent from the wording of Article 6 of the Rome Convention and from its objective, the court must first determine the applicable law by reference to the specific connecting factors under Article 6(2)(a) and (b) respectively, which satisfy the general requirement of predictability of the law and accordingly of legal certainty in contractual relationships (see, by analogy, Case C‑133/08 ICF [2009] ECR I‑9687, paragraph 62).
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62. As is apparent from the wording and the objective of Article 4 of the Convention, the court must always determine the applicable law on the basis of those presumptions, which satisfy the general requirement of foreseeability of the law and thus of legal certainty in contractual relationships.
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480 IN FACT, IF SUCH AN AGENT WORKS FOR THE BENEFIT OF HIS PRINCIPAL HE MAY IN PRINCIPLE BE TREATED AS AN AUXILIARY ORGAN FORMING AN INTEGRAL PART OF THE LATTER'S UNDERTAKING, WHO MUST CARRY OUT HIS PRINCIPAL'S INSTRUCTIONS AND THUS, LIKE A COMMERCIAL EMPLOYEE, FORMS AN ECONOMIC UNIT WITH THIS UNDERTAKING .
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43. According to settled case-law, the aims of Articles 39 EC to 42 EC would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid. Such a consequence might discourage Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (see, to that effect, Case C‑349/87 Paraschi [1991] ECR I‑4501, paragraph 22; Case C‑215/99 Jauch [2001] ECR I‑1901, paragraph 20; and Hosse , cited above, paragraph 24).
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20 As the Court has consistently held (see, for example, Case 284/84 Spruyt [1986] ECR 685, paragraphs 18 and 19), the provisions of Regulation No 1408/71 adopted to give effect to Article 51 of the EC Treaty (now, after amendment, Article 42 EC) must be interpreted in the light of the objective of that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers. The aim of Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC), Article 50 of the EC Treaty (now Article 41 EC) and Article 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid.
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62. Also according to the order for reference, it is only if, as a result of a set of very special individual circumstances, the third country national is permanently unable to pass that examination that the hardship clause is to apply.
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26. Where the Commission adopts such a decision, it declares not only that the measure is compatible with the common market, but also – by implication – that it refuses to initiate the formal investigation procedure laid down in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 ( Commission v Kronoply and Kronotex , paragraph 45, and Austria v Scheucher-Fleisch and Others , paragraph 42).
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45. Where the Commission adopts a decision not to raise objections, it declares not only that the measure is compatible with the common market, but also – by implication – that it refuses to initiate the formal investigation procedure laid down in Article 88(2) EC and Article 6(1) of Regulation No 659/1999.
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99 However, as has been pointed out by Mr Bosman, by the Danish Government and by the Advocate General in points 209 and 210 of his Opinion, those rules are likely to restrict the freedom of movement of players who wish to pursue their activity in another Member State by preventing or deterring them from leaving the clubs to which they belong even after the expiry of their contracts of employment with those clubs.
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21. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that account cannot be taken of any subsequent changes (see, in particular, Case C‑103/00 Commission v Greece [2002] ECR I-1147, paragraph 23, and Case C‑97/01 Commission v Luxembourg [2003] ECR I-5797, paragraph 30).
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30. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraph 23, and Case C-323/01 Commission v Italy [2002] ECR I-4711, paragraph 8).
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52 It is necessary to consider first whether a decision taken by the organisations representing employers and workers in a given sector, in the context of a collective agreement, to set up in that sector a single pension fund responsible for managing a supplementary pension scheme and to request the public authorities to make affiliation to that fund compulsory for all workers in that sector is contrary to Article 85 of the Treaty.
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43. It should be borne in mind, as a preliminary point, that in accordance with the Court’s settled case-law, the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also its context and the provisions of EU law as a whole. The origins of a provision of EU law may also provide information relevant to its interpretation (see, inter alia, judgment in Inuit Tapiriit Kanatami and Others v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 50 and the case-law cited).
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50. As regards the merits of this part of the first ground of appeal, it must be observed that, in accordance with the Court’s settled case-law, the interpretation of a provision of European Union law requires that account be taken not only of its wording and the objectives it pursues, but also its context and the provisions of European Union law as a whole (see, to that effect, Case 283/81 Cilfit and Others [1982] ECR 3415, paragraph 20). The origins of a provision of European Union law may also provide information relevant to its interpretation (see, to that effect, the judgment of 27 November 2012 in Case C‑370/12 Pringle [2012] ECR I‑0000, paragraph 135).
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Par ailleurs, un État membre ne saurait exciper de situations de son ordre juridique interne pour justifier le non-respect
du droit de l’Union (voir, en ce sens, arrêt Commission/Grèce, C‑109/94, C‑207/94 et C‑225/94, EU:C:1995:210, point 11).
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23. It is true that in Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraphs 21 to 24, the Court held that a term, drafted in advance by the seller, the purpose of which is to confer jurisdiction in respect of all disputes arising under the contract on the court in the territorial jurisdiction of which the seller has his principal place of business, satisfies all the criteria necessary for it to be judged unfair for the purposes of the Directive. Nevertheless, that assessment was reached in relation to a term which was solely to the benefit of the seller and contained no benefit in return for the consumer. Whatever the nature of the contract, it thereby undermined the effectiveness of the legal protection of the rights which the Directive affords to the consumer. It was thus possible to hold that the term was unfair without having to consider all the circumstances in which the contract was concluded and without having to assess the advantages and disadvantages that that term would have under the national law applicable to the contract.
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22 A term of this kind, the purpose of which is to confer jurisdiction in respect of all disputes arising under the contract on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business, obliges the consumer to submit to the exclusive jurisdiction of a court which may be a long way from his domicile. This may make it difficult for him to enter an appearance. In the case of disputes concerning limited amounts of money, the costs relating to the consumer's entering an appearance could be a deterrent and cause him to forgo any legal remedy or defence. Such a term thus falls within the category of terms which have the object or effect of excluding or hindering the consumer's right to take legal action, a category referred to in subparagraph (q) of paragraph 1 of the Annex to the Directive.
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19 The EEC Treaty does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State which is both the national language and the first official language . However, the implementation of such a policy must not encroach upon a fundamental freedom such as that of the free movement of workers . Therefore, the requirements deriving from measures intended to implement such a policy must not in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States .
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50. In that respect, first, it should be noted that, according to Article 5(1) of the Sixth Directive, ‘supply of goods’ means the transfer of the right to dispose of tangible property as owner. The case‑law of the Court of Justice states that that term covers any transfer of tangible property by one party who empowers the other party actually to dispose of it as if he were the owner of the property (see, in particular, Case C‑320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I‑285, paragraph 7; Joined Cases C‑497/09, C‑499/09, C‑501/09 and C‑502/09 Bog and Others [2011] ECR I‑1457, paragraph 59).
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59. As regards the concept of ‘supply of goods’, Article 5(1) of the Sixth Directive states that the transfer of the right to dispose of tangible property as owner is such a supply. In that regard the case-law of the Court explains that the concept covers any transfer of tangible property by one party which empowers the other pa rty actually to dispose of it as if he were its owner (see, inter alia, Halifax and Others , paragraph 51).
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39. Moreover, in an action for failure to fulfil obligations, it is incumbent on the Commission, during the pre-litigation procedure, to indicate the specific provision which defines the obligation with which the Member State is alleged to have failed to comply. That obligation on the Commission stems, in particular, from two requirements, namely the safeguarding of the rights of the defence of the Member State involved in such proceedings and the need clearly to delimit the subject-matter of the dispute.
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28
It should further be observed that, according to settled case-law, the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge (judgment of 29 October 2015, BBVA, C‑8/14, EU:C:2015:731, paragraph 17 and the case-law cited).
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17. In order to answer that question, it should be noted first that the system of protection introduced by the directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge (judgments in Aziz , C‑415/11, EU:C:2013:164, paragraph 44, and Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 22).
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97. That may be the case, first, in certain rural areas where the population is generally dispersed and less numerous. The effect of that special feature may be that, were the condition of the minimum number of 2 800 inhabitants to be uniformly applied, certain inhabitants concerned would find themselves beyond reasonable reach of a pharmacy and would thus be denied adequate access to pharmaceutical services.
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24. According to the Court’s case-law Article 13(2)(f) of Regulation No 1408/71 applies both to persons who have definitively ceased all occupational activity and to those who have merely temporarily ceased their occupational activity (Case C‑275/96 Kuusijärvi [1998] ECR I-3419, paragraphs 39 and 40).
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39 On this point it should first be stated that there is nothing in the wording of Article 13(2)(f) of Regulation No 1408/71 to suggest that that provision applies only to workers who have definitively ceased all occupational activity and not to persons who have merely ceased their occupational activity in a given Member State.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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37
As the referring court has pointed out, the Court of Justice has given a broad interpretation of the provisions of point 7(b) and (c) of Annex I to Directive 85/337 (which have been restated in identical terms in point 7(b) and (c) of Annex I to Directive 2011/92), holding that a project for refurbishment of a road which would be equivalent, by its scale and the manner in which it is carried out, to construction may be regarded as a construction project for the purposes of those provisions (see, to that effect, judgments of 25 July 2008, Ecologistas en Acción-CODA, C‑142/07, EU:C:2008:445, paragraph 36, and of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others, C‑275/09, EU:C:2011:154, paragraph 27).
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36. For that purpose, the fact that point 7(b) and (c) of Annex I to the amended directive refers to projects for the ‘construction’ of the types of road mentioned, whereas the case in the main proceedings concerns projects for refurbishment and improvement of an existing road, does not mean that the latter are excluded from the scope of the amended directive. A project for refurbishment of a road which would be equivalent, by its size and the manner in which it is carried out, to construction may be regarded as a construction project for the purposes of that annex (see, to that effect, Case C-227/01 Commission v Spain [2004] ECR I‑8253, paragraph 46, and Abraham and Others , paragraph 32).
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52. That situation is therefore likely to jeopardise the principles of fiscal neutrality and legal certainty.
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58. Thus, the second paragraph of Article 6 of Regulation No 343/2003 cannot be interpreted in such a way that it disregards that fundamental right (see, by analogy, Detiček , paragraphs 54 and 55, and Case C‑400/10 PPU McB. [2010] ECR I‑8965, paragraph 60).
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55. Article 20 of Regulation No 2201/2003 cannot be interpreted in such a way that it disregards that fundamental right.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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50. That being the case, the EU legislature made clear in that provision that the abnormally low character of a tender must be assessed ‘in relation to the service to be provided’. Thus, the contracting authority may, in the course of its examination of the abnormally low character of a tender, take into consideration, for the purpose of ensuring healthy competition, not only the situations set out in the second paragraph of Article 37 of Directive 92/50 but also all the factors that are relevant in the light of the service at issue (see, to that effect, the judgment in SAG ELV Slovensko and Others , EU:C:2012:191, paragraphs 29 and 30).
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29. Accordingly, the existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer, to enable the latter to demonstrate that its tender is genuine, constitutes a fundamental requirement of Directive 2004/18, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings (see, to that effect, Lombardini and Mantovani , paragraph 57).
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51. As regards, finally, the possibility raised in the fourth question, namely the allogeneic rather than autologous use of the cord stem cells, it is sufficient to observe that that circumstance has, as a rule, no bearing on the conclusions set forth in paragraphs 34 to 50 of the present judgment.
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12. En second lieu, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 8 novembre 2001, Commission/Italie, C‑127/99, Rec. p. I–8305, point 38, et du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I–9535, point 9).
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38 In that regard, it should be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see Case C-207/00 Commission v Italy [2001] ECR I-4571, paragraph 27).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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33. The financial resources of a private-law company such as Friulia, 87% of which is held by a public authority such as the Region of Friulia-Venezia Giulia and which acts under the control of that authority, may be regarded as State resources within the meaning of Article 87(1) EC (see, to that effect, Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 32, and Joined Cases 67/85, 68/85 and 70/85 Van der Kooy v Commission [1988] ECR 219, paragraphs 36 and 38). The fact that Friulia participated using its own funds is irrelevant in that regard. For those funds to be categorised as State resources, it is sufficient that, as in the present case, they constantly remain under public control and therefore available to the competent national authorities (see, to that effect, Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 37).
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36 FIRST OF ALL, THE SHARES IN GASUNIE ARE SO DISTRIBUTED THAT THE NETHERLANDS STATE DIRECTLY OR INDIRECTLY HOLDS 50% OF THE SHARES AND APPOINTS HALF THE MEMBERS OF THE SUPERVISORY BOARD - A BODY WHOSE POWERS INCLUDE THAT OF DETERMINING THE TARIFFS TO BE APPLIED . SECONDLY, THE MINISTER FOR ECONOMIC AFFAIRS IS EMPOWERED TO APPROVE THE TARIFFS APPLIED BY GASUNIE, WITH THE RESULT THAT, REGARDLESS OF HOW THAT POWER MAY BE EXERCISED, THE NETHERLANDS GOVERNMENT CAN BLOCK ANY TARIFF WHICH DOES NOT SUIT IT . LASTLY, GASUNIE AND THE LANDBOUWSCHAP HAVE ON TWO OCCASIONS GIVEN EFFECT TO THE COMMISSION' S REPRESENTATIONS TO THE NETHERLANDS GOVERNMENT SEEKING AN AMENDMENT OF THE HORTICULTURAL TARIFF, FIRST FOLLOWING COMMISSION DECISION 82/73, WHICH WAS LATER REPEALED, AND THEN AGAIN FOLLOWING DECISION 85/215, WHICH IS CHALLENGED IN THESE PROCEEDINGS .
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40. It is clear from the Court’s case-law that a restriction on the freedom of establishment is permissible only if it is justified by overriding reasons in the public interest. It is further necessary, in such a case, that its application be appropriate to ensuring the attainment of the objective in question and not go beyond what is necessary to attain it ( Lidl Belgium , paragraph 27 and case-law cited).
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83. As regards the second condition, it is clear from Article 2(1) of Directive 85/337 that the fundamental objective of the directive is to ensure that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their environmental effects before consent is given (see Linster , paragraph 52; Boxus and Others , paragraph 41; and Solvay and Others , paragraph 35).
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35. As regards the second condition, Article 2(1) of Directive 85/337 shows that the essential objective of the directive is to ensure that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment of their effects on the environment before consent is given (see Linster , paragraph 52, and Boxus and Others , paragraph 41).
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27 Without contradicting those findings by producing evidence, the applicant government merely contends that administrative checks were in fact carried out, as well as on-the-spot inspections, and that the failure to draw up written reports proves that the officials entrusted with carrying out the checks did not find any irregularities, since written reports were drawn up only when necessary, namely in the case of irregularities .
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104 In view of the interest of the Member States thus defined they cannot be precluded, when determining what services of general economic interest to entrust to certain undertakings, from taking account of objectives pertaining to their national policy or from endeavouring to attain them by means of obligations and constraints which they impose on such undertakings (Commission v Netherlands, cited above, paragraph 40).
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40 The Member States' interest being so defined, they cannot be precluded, when defining the services of general economic interest which they entrust to certain undertakings, from taking account of objectives pertaining to their national policy or from endeavouring to attain them by means of obligations and constraints which they impose on such undertakings.
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163. It must first be pointed out that, after finding in paragraphs 280 to 282 of the judgment under appeal that, by disclosing to the press, with a high degree of accuracy, an essential element of the contested decision before its adoption, namely the amount of the fine envisaged, the Commission adversely affected the dignity of the undertaking charged and acted contrary to the interests of proper Community administration, the Court of First Instance rejected annulment of that decision, as requested by the appellant, on the basis of the reasons set out in paragraph 283 of the judgment under appeal, which is worded as follows:
" It is settled case-law that an irregularity of the type found above may lead to annulment of the decision in question if it is established that the content of that decision would have differed if that irregularity had not occurred (... Suiker Unie and Others v Commission [cited above], paragraph 91; Dunlop Slazenger v Commission , cited above, paragraph 29). However, in the present case the applicant has not adduced such proof. There are no grounds for supposing that if the information at issue had not been disclosed the Advisory Committee or the College of Commissioners would have altered the proposed amount of the fine or the content of the decision."
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47. If the interpretation advocated by the Commission were to be accepted, transactions which were substantively identical would be treated differently for the purposes of levying VAT depending on whether or not they were part of the taxable person’s normal and usual business. Such a practice would be contrary to the VAT system’s objectives of ensuring legal certainty and facilitating application of the tax by having regard, save in exceptional cases, to the objective character of the transaction in question (see, to that effect, Case C‑4/94 BLP Group [1995] ECR I‑983, paragraph 24).
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24 Moreover, if BLP' s interpretation were accepted, the authorities, when confronted with supplies which, as in the present case, are not objectively linked to taxable transactions, would have to carry out inquiries to determine the intention of the taxable person. Such an obligation would be contrary to the VAT system' s objectives of ensuring legal certainty and facilitating application of the tax by having regard, save in exceptional cases, to the objective character of the transaction in question.
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60 In order to prove that the transposition of a directive is insufficient or inadequate, it is not necessary to establish the actual effects of the legislation transposing it into national law: it is the wording of the legislation itself which harbours the insufficiencies or defects of transposition.
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13 As the Court has consistently held, it follows from that principle that measures imposing financial charges on economic agents are lawful provided that the measures are appropriate and necessary for the attainment of the objectives legitimately pursued by the legislation in question. Of course, where there is a choice between several appropriate measures, the least onerous measures must be used and the charges imposed must not be disproportionate to the aims pursued (see, for example, the judgment in Case 265/87 Schraeder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 21). Thus, in order to answer the second question, it is first necessary to recall the objective of Regulations Nos 796/81 and 1755/81.
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21 The Court has consistently held that the principle of proportionality is one of the general principles of Community law . By virtue of that principle, measures imposing financial charges on economic operators are lawful provided that the measures are appropriate and necessary for meeting the objectives legitimately pursued by the legislation in question . Of course, when there is a choice between several appropriate measures, the least onerous measure must be used and the charges imposed must not be disproportionate to the aims pursued .
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36. S’agissant de l’objectif poursuivi, il résulte d’une jurisprudence constante que la réglementation de l’Union relative à l’évaluation en douane vise à établir un système équitable, uniforme et neutre qui exclue l’utilisation de valeurs en douane arbitraires ou fictives (arrêts du 6 juin 1990, Unifert, C‑11/89, Rec. p. I‑2275, point 35; du 19 octobre 2000, Sommer, C‑15/99, Rec. p. I‑8989, point 25, et du 16 novembre 2006, Compaq Computer International Corporation, C‑306/04, Rec. p. I‑10991, point 30).
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23 First, it should be recalled that it is for the Member States, by virtue of Article 5 of the EC Treaty, to ensure that Community regulations, particularly those concerning the common agricultural policy, are implemented within their territory. Similarly, it follows from Article 8(1) of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (1), p. 218), that Member States must take the measures necessary to recover sums lost as a result of irregularities or negligence. The exercise of any discretion to decide whether or not it would be expedient to demand repayment of Community funds unduly or irregularly granted would be inconsistent with that duty (Deutsche Milchkontor, paragraphs 17, 18 and 22).
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22 IN THE FIRST PLACE THE APPLICATION OF NATIONAL LAW MUST NOT AFFECT THE SCOPE AND EFFECTIVENESS OF COMMUNITY LAW . THAT WOULD BE THE CASE IN PARTICULAR IF THE APPLICATION OF NATIONAL LAW MADE IT IMPOSSIBLE IN PRACTICE TO RECOVER SUMS IRREGULARLY GRANTED . FURTHERMORE , THE EXERCISE OF ANY DISCRETION TO DECIDE WHETHER OR NOT IT WOULD BE EXPEDIENT TO DEMAND REPAYMENT OF COMMUNITY FUNDS UNDULY OR IRREGULARLY GRANTED WOULD BE INCONSISTENT WITH THE DUTY TO RECOVER SUCH SUMS WHICH ARTICLE 8 ( 1 ) OF REGULATION NO 729/70 IMPOSES ON THE NATIONAL ADMINISTRATION .
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30. À titre liminaire, il convient de rappeler que, selon une jurisprudence constante, le droit d’obtenir le remboursement d’impôts perçus dans un État membre en violation du droit de l’Union est la conséquence et le complément des droits conférés aux contribuables par les dispositions du droit de l’Union telles qu’elles ont été interprétées par la Cour. Un État membre est ainsi tenu, en principe, de rembourser les impôts perçus en violation du droit de l’Union (voir arrêt du 19 juillet 2012, Littlewoods Retail e.a., C‑591/10, point 24 et jurisprudence citée).
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35. However, it must be borne in mind that Article 307(1) EC is designed to apply only if there is an incompatibility between, on the one hand, an obligation arising under the international convention, concluded by the Hellenic Republic before its accession to the Community and by which that State became an IMO member, and, on the other, an obligation arising under Community law (see, to that effect, Case C‑62/98, Commission v Portugal [2000] ECR I-5171, paragraphs 46 and 47).
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47 Consequently, the obligations to which the Portuguese Republic is subject by virtue of Articles 3 and 4 of Regulation No 4055/86 are not affected by the principle laid down in the first paragraph of Article 234 of the Treaty.
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43. In such a situation, the party injured as a result of domestic law not being in conformity with European Union law can none the less rely on the judgment in Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357 in order to obtain, if appropriate, compensation for the loss sustained.
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29 Article 93 of the Treaty provides for a special procedure by which the Commission is to keep State aid under constant review. As regards proposed new grants of aid by the Member States, it establishes a procedure which must be followed before any aid can be regarded as lawfully granted. Under the first sentence of Article 93(3) of the Treaty, as interpreted by the case-law of the Court, the Commission is to be notified of any plans to grant or alter aid before those plans are implemented (Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 35).
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35 Article 93 of the Treaty provides for a special procedure by which the Commission is to keep State aid under constant review. As regards proposed new grants of aid by the Member States, it establishes a procedure which must be followed before any aid can be regarded as lawfully granted. Under the first sentence of Article 93(3) of the Treaty, as interpreted by the case-law of the Court, the Commission is to be notified of any plans to grant or alter aid before those plans are implemented.
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62. It should be observed here that that provision distinguishes between the decisions which the Council, acting unanimously, may adopt and the measures necessary to implement those decisions at the level of the Union which the Council, acting by a qualified majority, adopts.
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46. The Court has consistently held that, in the absence of EU rules governing the matter, it is for each Member State, in accordance with the principle of the procedural autonomy of the Member States, to lay down the detailed rules of administrative and judicial procedures governing actions for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgments in Club Hotel Loutraki and Others , C‑145/08 and C‑149/08, EU:C:2010:247, paragraph 74, and eVigilo , C‑538/13, EU:C:2015:166, paragraph 39).
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74. The Court has consistently held that, in the absence of Community rules governing the matter, it is for each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness) (see, to that effect, Case C‑268/06 Impact [2008] ECR I‑2483, paragraphs 44 and 46 and the case-law cited).
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36. En ce qui concerne la charge de la preuve, il convient de rappeler que, dans le cadre d’une procédure en manquement, en vertu de l’article 226 CE, il incombe à la Commission d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, notamment, arrêts du 25 mai 1982, Commission/Pays-Bas, 96/81, Rec. p. 1791, point 6, et du 12 septembre 2000, Commission/Pays-Bas, C-408/97, Rec. p. I‑6417, point 15).
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45. With a view to determining the exact scope of Article 41(1) of the Additional Protocol in a situation such as that at issue in the main proceedings, it must be recalled, first, that, in accordance with consistent case-law, the provision has direct effect. It lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill’ clause, which contains an obligation entered into by the contracting parties which amounts in law to a duty not to act (see Savas , paragraphs 46 to 54 and 71, second indent; Abatay and Others , paragraphs 58, 59 and 117, first indent, and Case C‑16/05 Tum and Dari [2007] ECR I‑7415, paragraph 46). Consequently, the rights which Article 41(1) of the Additional Protocol confers on the Turkish nationals to whom it applies may be relied on before the courts of the Member States (see, in particular, Savas , paragraph 54, and Tum and Dari , paragraph 46).
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46 As its very wording shows, this provision lays down, clearly, precisely and unconditionally, an unequivocal standstill clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol.
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36. That government also challenges the relevance of the question referred by the national court in the light of the fact that there is no anti-competitive practice in the case in the main proceedings, either in establishing the scale or on account of the conduct of operators.
– The Court’s answer
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44. That authority is not attached only to the operative part of the BAI v Commission judgment. It is also attached to the ratio decidendi of that judgment which is inseparable from it (see, to that effect, Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Commission v AssiDomän Kraft Products and Others , paragraph 54).
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54 Furthermore, although the authority erga omnes exerted by an annulling judgment of a court of the Community judicature (see, in particular, the judgments in Case 1/54 France v High Authority [1954-1956] ECR 1, at page 17; Case 2/54 Italy v High Authority [1954 to 1956] ECR 37, at page 55; and in Case 3/54 ASSIDER v High Authority [1954 to 1956] ECR 63) attaches to both the operative part and the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the Community judicature but alleged to be vitiated by the same illegality.
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25. In this connection, the Gerechtshof te Amsterdam makes clear that Mr van der Steen did not bear any economic business risk in acting as manager and performing the work in the course of the company’s dealings with third parties.
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51. It is also common ground that the mere fact that an act of the European Union, such as an agreement concluded by it, is liable to have implications for international trade is not enough for it to be concluded that the act must be classified as falling within the common commercial policy. On the other hand, a European Union act falls within the common commercial policy if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade (Opinion 2/00 [2001] ECR I‑9713, paragraph 40; Case C‑347/03 Regione autonoma Friuli-Venezia Giulia and ERSA [2005] ECR I‑3785, paragraph 75; and Case C‑411/06 Commission v Parliament and Council [2009] ECR I‑7585, paragraph 71).
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75. According to the case-law of the Court, a Community act falls within the exclusive competence in the field of the common commercial policy provided for in Article 133 EC only if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade in the products concerned (see Opinion 1/94 [1994] ECR I-5267, paragraph 57, Opinion 2/00 [2001] ECR I-9713, paragraph 40, and Case C-281/01 Commission v Council [2002] ECR I-12049, paragraphs 40 and 41).
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52. À cet égard, le système de protection mis en œuvre par la directive 93/13 reposant sur l’idée que le consommateur se trouve dans une situation d’infériorité en ce qui concerne, notamment, le niveau d’information, l’exigence de rédaction claire et compréhensible des clauses contractuelles posée par cette directive doit être entendue de manière extensive (voir, en ce sens, arrêt Kásler et Káslerné Rábai, C‑26/13, EU:C:2014:282, point 72).
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20. The Oberster Gerichtshof is, however, unsure whether, taking account of the relevant case-law of the Court (see Case 144/86 Gubisch Maschinenfabrik [1987] ECR 4861, paragraphs 16 to 18, and Case C-406/92 The Tatry [1994] ECR I-5439, paragraphs 30 to 34), there any grounds for holding that the requirements for lis pendens have been met in this case.
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32 In the light of the wording of Article 21 of the Convention and the objective set out above, that article must be understood as requiring, as a condition of the obligation of the second court seised to decline jurisdiction, that the parties to the two actions be identical.
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33 In this case there is no factor to justify a derogation from the principle that a ruling on the interpretation of Community law takes effect from the date on which the rule interpreted entered into force.
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27
It accordingly follows from the Court’s case-law that, first, exceptions to that freedom must be interpreted strictly (see, to that effect, judgments of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 43 to 55, and of 1 February 2017, Commission v Hungary, C‑392/15, EU:C:2017:73, paragraph 106 and the case-law cited), second, while the provisions of the Treaty relating to that freedom are aimed at ensuring the benefit of national treatment in the host Member State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated in accordance with its legislation (judgments of 27 September 1988, Daily Mail and General Trust, 81/87, EU:C:1988:456, paragraph 16, and of 21 May 2015, Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 33 and the case-law cited) and, third, the concept of establishment within the meaning of the Treaty is a very broad one, allowing an EU national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the European Union (see, to that effect, judgment of 30 November 1995, Gebhard, C‑55/94, EU:C:1995:411, paragraph 25).
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33. Although, according to their wording, the provisions of the FEU Treaty on freedom of establishment are aimed at ensuring the benefit of national treatment in the host Member State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated in accordance with its legislation (judgment in Commission v Germany , C‑591/13, EU:C:2015:230, paragraph 56 and the case-law cited).
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80. The annulment of the contested decision without its effects being maintained would call in question the signing of the Convention by the European Union, which took place on 21 December 2011, even though the competence of the European Union to sign that convention has never been called in question.
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55. The Court has thus held that to give companies the right to elect to have their losses taken into account in the Member State in which they are established or in another Member State would seriously undermine a balanced allocation of the power to impose taxes between the Member States ( Marks & Spencer , paragraph 46, and Rewe Zentralfinanz , paragraph 42).
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46. In effect, to give companies the option to have their losses taken into account in the Member State in which they are established or in another Member State would significantly jeopardise a balanced allocation of the power to impose taxes between Member States, as the taxable basis would be increased in the first State and reduced in the second to the extent of the losses transferred.
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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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41. In a definitive transfer, as is the case in the main proceedings, a farmer who benefited from payment entitlements up until that point definitively waives his claims on the transfer of his entitlements to another farmer who then activates them for his benefit (see, to that effect, van Dijk , paragraph 35).
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35. In particular, Article 46(2) provides that payment entitlements without land may by transferred only by definitive transfer. In such a case, a farmer who benefited from payment entitlements up until that point definitively waives his claims on the sale of his entitlements to another farmer, who then activates them for his benefit. In order to be able to claim payment of those entitlements, in accordance with Article 44(1) of Regulation No 1782/2003, the farmer concerned would have to have a sufficient number of eligible hectares of agricultural land in order to ensure the existence of a sufficient agricultural basis for the payment entitlements.
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20 In that regard, network cards satisfy the conditions relating to units set out in Note 5(B) to Chapter 84 of the Combined Nomenclature, since they can be connected to the central unit and are specifically designed as parts of an automatic data-processing system.
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35. As regards Article 5 of the directive, the Court has already held on several occasions that that article, which lays down, in paragraph (1), the principle of the prohibition of unfair commercial practices, sets out the relevant criteria for the purpose of establishing whether a practice is unfair (see VTB-VAB and Galatea , paragraph 53; Plus Warenhandelsgesellschaft , paragraph 42; and Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 31).
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31. In addition, Article 5 of Directive 2005/29 provides that unfair commercial practices are to be prohibited and sets out the criteria on the basis of which practices may to be classified as being unfair.
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10 According to the judgment of 17 October 1989 in Joined Cases 231/87 and 129/88, cited above, paragraph 15, it is the manner in which the activities are carried out that determines the scope of the treatment of public bodies as non-taxable persons . In so far as that provision makes such treatment of bodies governed by public law conditional upon their acting "as public authorities", it excludes therefrom activities engaged in by them as bodies governed not by public law but by private law . Consequently, the only criterion making it possible to distinguish with certainty between those two categories of activity is the legal regime applicable under national law .
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100. It is clear from the case-law of the Court that it is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of Community law ( Brasserie du Pêcheur and Factortame , paragraph 58), in accordance with the guidelines laid down by the Court for the application of those criteria ( Brasserie du Pêcheur and Factortame , paragraphs 55 to 57; British Telecommunications , cited above, paragraph 411; Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit and Others [1996] ECR I-5063, paragraph 49, and Konle , cited above, paragraph 58).
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55. As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
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22 In addition, 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 (see judgments in Wiener SI, cited above, paragraph 11 and Peacock, cited above, paragraph 10).
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71. As regards, finally, the argument concerning the preservation of the coherence of the Finnish tax system, the Court has acknowledged that the need to preserve such coherence may justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty (see Case C‑204/90 Bachmann [1992] ECR I‑249, paragraph 28; Case C‑300/90 Commission v Belgium [1992] ECR I‑305, paragraph 21; Keller Holding , paragraph 40; Amurta , paragraph 46; and Case C‑293/06 Deutsche Shell [2008] ECR I‑1129, paragraph 37).
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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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59
It follows from the case-law of the Court of Justice, however, that the taking into account, by virtue of the principle of equal treatment, of differences between the undertakings that have participated in a single cartel (in particular with regard to the geographic scope of their respective involvement) for the purpose of assessing the gravity of an infringement need not necessarily occur when the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgments of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraphs 96 to 100, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraphs 104 and 105).
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100. En effet, premièrement, conformément à la jurisprudence rappelée au point 90 du présent arrêt, le Tribunal a bien analysé la gravité de l’infraction telle qu’elle avait été commise par Gosselin ainsi que la pertinence, aux fins de l’octroi éventuel du bénéfice de circonstances atténuantes, du comportement individuellement adopté par celle-ci dans l’entente. Il convient, en particulier, de relever à cet égard que, tout en constatant, au point 182 de l’arrêt attaqué, que le point 29 des lignes directrices pour le calcul des amendes ne prévoyait pas expressément que le comportement dont cette société se prévalait puisse constituer une circonstance atténuante, le Tribunal a cependant apprécié si les circonstances particulières de l’espèce n’appelaient pas néanmoins une réduction de l’amende infligée à cette dernière, se conformant ainsi pleinement à la jurisprudence susmentionnée.
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27
In particular, the Court has held that a national court, in assessing the facts characterising the transaction in question, must take into account among other things the type of undertaking or business concerned (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 33).
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18. ‘Economic activity’ is defined in Article 4(2) of the Sixth Directive as including all activities of producers, traders and persons supplying services, inter alia the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis ( Régie dauphinoise , paragraph 15, and T-Mobile Austria and Others , paragraph 33). The latter criteria, relating to the permanent nature of the activity and the income which is obtained from it, have been treated by the case-law as applying not only to the exploitation of property, but to all of the activities referred to in Article 4(2) of the Sixth Directive. An activity is thus, generally, categorised as economic where it is permanent and is carried out in return for remuneration which is received by the person carrying out the activity (see to that effect, Commission v Netherlands , paragraphs 9 and 15).
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15 IT MUST THEREFORE BE CONCLUDED THAT, INASMUCH AS THEY CARRY OUT INDEPENDENTLY ECONOMIC ACTIVITIES CONSISTING IN THE SUPPLY OF SERVICES TO THIRD PARTIES, IN RETURN FOR WHICH THEY RECEIVE FEES FOR THEIR OWN ACCOUNT, NOTARIES AND BAILIFFS IN THE NETHERLANDS MUST BE REGARDED AS TAXABLE PERSONS FOR VAT PURPOSES, WITHIN THE MEANING OF ARTICLE 4 ( 1 ) AND ( 2 ) OF THE SIXTH DIRECTIVE .
EXEMPTION FROM VAT FOR BODIES GOVERNED BY PUBLIC LAW
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32. As the Advocate General stated at point 106 of her Opinion, it is, in that regard, irrelevant that considerable time has elapsed since the appellant in the main proceedings exercised her free movement rights (see, by analogy, judgment in Nerkowska , C‑499/06, EU:C:2008:300, paragraph 47).
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71
Consequently, it is for the referring court to ascertain, in particular, whether, in circumstances such as those of the main proceedings, it was not actually possible for the Land of Berlin, in its capacity as an employer, to guarantee to Ms H. that she could return to her post at the end of her parental leave and, if so, to ensure that she would then be assigned, as required by Clause 5(1) of the revised Framework Agreement, an equivalent or similar post consistent with her employment contract or employment relationship, so as to enable her to continue a probationary period there under conditions that were, moreover, in compliance with the requirements arising from Clause 5(2) of that framework agreement (see, by analogy, judgment of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraph 51).
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51. It is therefore for the referring court to ascertain whether, in circumstances such as those of the main proceedings, it was not possible for the employer to return Ms Riežniece to her post and, if so, whether the work to which she was assigned was equivalent or similar and consistent with her employment contract or employment relationship.
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66. The right thus conferred on the insured person consequently means that the cost of the treatment given is initially borne by the institution of the Member State of stay, in accordance with the legislation it administers, and the competent institution is subsequently to reimburse the institution of the Member State of stay under the conditions laid down in Article 36 of Regulation No 1408/71 (see Vanbraekel and Others , paragraph 33, and Inizan , paragraphs 20, 22 and 23).
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112 Referring to GB-Inno-BM, cited above, Brentjens considers, however, that the fact that the Fund fulfils a dual role, as manager of the pension scheme and as the authority vested with the power to grant exemptions, might give rise to arbitrary exercise of the power of exemption.
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28 Accordingly, it must first be stated, in reply to the national court' s questions, that Articles 3(f), 90 and 86 of the EEC Treaty preclude a Member State from granting to the undertaking which operates the public telecommunications network the power to lay down standards for telephone equipment and to check that economic operators meet those standards when it is itself competing with those operators on the market for that equipment.
The free movement of goods
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24. For such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, inter alia, Case C‑347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 62 and the case-law cited).
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24. In that connection, it must be recalled that, according to settled case-law, Article 1(2)(b) of Regulation No 44/2001 excludes from the scope of that regulation only actions which derive directly from insolvency proceedings and are closely connected with them (see, to that effect, Case C‑111/08 SCT Industri [2009] ECR I‑5655, paragraph 21 and the case-law cited, and Case C‑213/10 F-Tex [2012] ECR I‑0000, paragraph 29).
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21. In its case-law relating to the Brussels Convention, the Court has thus held that an action is related to bankruptcy if it derives directly from the bankruptcy and is closely linked to proceedings for realising the assets or judicial supervision (see Gourdain , paragraph 4). An action with such characteristics does not, therefore, fall within the scope of that convention.
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87. Il convient, en premier lieu, de rappeler que la sixième directive assigne un champ d’application très large à la TVA en visant, à son article 2, relatif aux opérations imposables, à côté des importations de biens, les livraisons de biens et prestations de services effectuées à titre onéreux à l’intérieur du pays et en définissant, à son article 4, paragraphe 1, comme «assujetti» quiconque accomplit, de façon indépendante, une activité économique, quels que soient les buts et les résultats de cette activité (voir, notamment, arrêts Commission/Pays-Bas, précité, points 6 et 7; du 4 décembre 1990, van Tiem, C‑186/89, Rec. p. I‑4363, point 17; du 12 septembre 2000, Commission/Grèce, C‑260/98, Rec. p. I‑6537, point 24, ainsi que du 16 septembre 2008, Isle of Wight Council e.a., C‑288/07, Rec. p. I‑7203, points 27 et 28).
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62. It must be recalled that, as the Court found in paragraph 56 of its judgment in Emesa Sugar , in 1997 Community production of beet sugar already exceeded the quantity consumed in the Community; in addition cane sugar was imported from the ACP States to cater for specific demand for that product and the Community was under an obligation to import a certain quantity of sugar from non-member countries under WTO Agreements. The Community was also required to subsidise sugar exports by granting export refunds, within the limits laid down in the WTO Agreements. In those circumstances and in view of the growing increase in imports of sugar from the OCTs since 1997, the Commission was entitled to take the view that any additional quantity of sugar reaching the Community market, even if minimal compared with Community production, would have obliged the Community institutions to increase the amount of the export subsidies, within the limits mentioned above, or to reduce the quotas of European producers, which would have disturbed the common organisation of the sugar market, the balance of which was already precarious, and would have been contrary to the objectives of the common agricultural policy.
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56 It is clear from the documents before the Court that at the date of Decision 97/803, first, Community production of beet sugar exceeded the quantity consumed in the Community; in addition cane sugar was imported from the ACP States to cater for specific demand for that product and the Community was under an obligation to import a certain quantity of sugar from non-member countries under WTO agreements. Second, the Community was also required to subsidise sugar exports by granting export refunds, within the limits laid down in the WTO agreements. In those circumstances, the Council was entitled to take the view that any additional quantity of sugar reaching the Community market, even if minimal compared with Community production, would have obliged the Community institutions to increase the amount of the export subsidies, within the limits mentioned above, or to reduce the quotas of European producers, which would have disturbed the common organisation of the market in sugar, the balance of which was precarious, and would have been contrary to the objectives of the common agricultural policy.
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71. In this connection, it should be noted that, subject to the exceptions permitted under Article 13 of Directive 95/46, all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6 of the directive and, secondly, with one of the criteria for making data processing legitimate listed in Article 7 of the directive (see Österreichischer Rundfunk and Others EU:C:2003:294, paragraph 65; Joined Cases C‑468/10 and C‑469/10 ASNEF and FECEMD EU:C:2011:777, paragraph 26; and Case C‑342/12 Worten EU:C:2013:355, paragraph 33).
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91 Article 85(1) does not restrict such an assessment to actual effects alone; it must also take account of the agreement's potential effects on competition within the common market (see, to this effect, Case 31/85 ETA v DK Investment [1985] ECR 3933, paragraph 12, and Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 54). As the Court of First Instance correctly reiterated, an agreement will, however, fall outside the prohibition in Article 85 if it has only an insignificant effect on the market (Case 5/69 Völk v Vervaecke, cited above, paragraph 7).
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12 THE CRUCIAL ELEMENT TO BE TAKEN INTO CONSIDERATION IN THAT RESPECT IS THE ACTUAL OR POTENTIAL EFFECT OF WITHHOLDING THE GUARANTEE ON THE COMPETITIVE POSITION OF PARALLEL DISTRIBUTORS . IN THAT CONNECTION IT IS NECESSARY TO CONSIDER WHETHER PARALLEL IMPORTS MAY BE HINDERED , OR WHETHER OPPORTUNITIES FOR MARKETING SUCH PRODUCTS MAY BE RESTRICTED , REGARD BEING HAD IN PARTICULAR TO THE REACTION OF CONSUMERS AND TO THE IMPORTANCE OF THE GUARANTEE AS AN INCENTIVE TO BUY THE PRODUCTS .
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33. It must be recalled as a preliminary point that, as recital 3 in the preamble to Directive 95/59 makes clear, the directive is part of a policy of harmonisation of the structures of excise duty on manufactured tobacco, the objective of which is to prevent the distortion of competition between different categories of manufactured tobacco belonging to the same group and, consequently, to open the national markets of the Member States.
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28
According to settled case-law, as regards public contracts falling within the scope of Directive 2004/18, Article 45(2) thereof leaves the application of the seven grounds for excluding candidates from participation in a contract, relating to their professional honesty, solvency and reliability, to the determination of the Member States, as evidenced by the phrase ‘may be excluded from participation in a contract’, which appears at the beginning of that provision (see, as far as concerns Article 29 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), judgment of 9 February 2006, La Cascina and Others, C‑226/04 and C‑228/04, EU:C:2006:94, paragraph 21). Furthermore, pursuant to Article 45(2), second subparagraph, the Member States must specify the conditions for applying paragraph 2, in accordance with their national law and in compliance with EU law (judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 35).
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35. In the second place, as regards the level of the exclusion threshold laid down in the national legislation, it should be borne in mind that, so far as concerns public contracts falling within the scope of Directive 2004/18, Article 45(2) of that directive leaves the application of the cases of exclusion mentioned to the assessment of the Member States, as evidenced by the phrase ‘may be excluded from participation in a contract’ which appears at the beginning of that provision and makes express reference, inter alia in subparagraphs (e) and (f), to the provisions of national law (see, as regards Article 29 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), La Cascina and Others , C‑226/04 and C‑228/04, EU:C:2006:94, paragraph 21). In addition, under the second subparagraph of Article 45(2), Member States are to specify, in accordance with their national law and having regard for EU law, the implementing conditions for that paragraph.
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7 According to the third and fourth recitals in the preamble to the regulation, the period of effective protection under a patent prior to adoption of the regulation was insufficient to cover the investment put into the pharmaceutical research. The regulation is specifically designed to remedy that insufficiency by the creation of a supplementary protection certificate for medicinal products in respect of which marketing authorization has been granted.
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132. Moreover, while the joint and several liability mechanism enables the Commission to reduce the risk that one of the companies forming part of the same undertaking will be insolvent, which forms part of the objectives of ensuring that the Commission operates effectively and of deterrence when dealing with infringements of the competition rules ( Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission , paragraph 59), that mechanism cannot be used to force one company to bear the risk of the insolvency of another company where those companies have never formed part of the same undertaking.
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59. On the contrary, the objective of joint and several liability resides in the fact that it constitutes an additional legal device available to the Commission to strengthen the effectiveness of the action taken by it for the recovery of fines imposed for infringement of the competition rules, since that mechanism reduces for the Commission, as creditor of the debt represented by such fines, the risk of insolvency, which is part of the objective of deterrence pursued generally by competition law, as the General Court essentially observed, correctly, at paragraph 151 of the judgment under appeal (see also, by analogy, Case C‑78/10 Berel and Others v Commission [2011] ECR I‑717, paragraph 48).
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102
Those elements show that the EU legislature weighed up, on the one hand, the economic consequences of that prohibition and, on the other, the requirement to ensure, in accordance with Article 114(3) TFEU, a high level of human health protection with regard to a product which is characterised by properties that are carcinogenic, mutagenic and toxic to reproduction.
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49. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective reasons exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and, as the case may be, oral observations which have been submitted to it, in order to enable the national court to give judgment (see Case C-328/91 Thomas and Others [1993] ECR I-1247, paragraph 13, and Steinicke , paragraph 59).
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59. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective reasons exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Hill and Stapleton , paragraph 36, Seymour-Smith and Perez , paragraph 68, and Kutz-Bauer , paragraph 52).
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105. Third, to the e xtent that Article 11(1a) of Law No 990/69 and Article 35(1) of the Code of Private Insurance are likely to have repercussions on premium rates in that they outline a technical framework within which insurance undertakings must calculate their premiums, it is clear that such a restriction on the freedom to set rates is not prohibited by Directive 92/49.
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10 In accordance with those criteria, it is necessary to determine whether it is the plastic or the textile material which gives the travel goods their essential character (see the judgment in Case 253/87 Sportex [1988] ECR 3351, at paragraph 8).
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8 In accordance with that general rule of interpretation, it is necessary, in carrying out the tariff classification of a product, to identify, from among the materials of which it is composed, the one which gives it its essential character . This may be done by determining whether the product would retain its characteristic properties if one or other of its constituents were removed from 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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31 The fact that a Member State can only plead in its defence against such an action that implementation was absolutely impossible does not prevent a State which, in giving effect to a Commission decision on State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences overlooked by the Commission, from submitting those problems to the Commission for consideration, together with proposals for suitable amendments to the decision in question. In such cases, the Commission and the Member State must, by virtue of the rule imposing on the Member States and the Community institutions a duty of genuine cooperation which underlies, in particular, Article 5 of the Treaty (now Article 10 EC), work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on aid (see Case 94/87 Commission v Germany [1989] ECR 175, paragraph 9; Commission v Italy, cited above, paragraph 17; Case C-404/97 Commission v Portugal [2000] ECR I-4897, paragraph 40; and Commission v France, cited above, paragraph 24).
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40 However, where a Member State, when implementing a Commission decision relating to State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences not contemplated by the Commission, it must submit those problems for consideration by the Commission, together with proposals for suitable amendments to the decision in question. In such a case the Commission and the Member State concerned must respect the principle underlying Article 5 of the Treaty, which imposes a duty of genuine cooperation on the Member States and the Community institutions, and must work together in good faith with a view to overcoming difficulties whilst fully observing the Treaty provisions, and in particular the provisions on aid (see, in particular, Case 94/87 Commission v Germany [1989] ECR 175, paragraph 9).
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41. Next, it must be observed, first, that it is true that a breakdown, such as that at issue in the main proceedings, caused by the premature malfunction of certain components of an aircraft, constitutes an unexpected event. Nevertheless, such a breakdown remains intrinsically linked to the very complex operating system of the aircraft, which is operated by the air carrier in conditions, particularly meteorological conditions, which are often difficult or even extreme, it being understood moreover that no component of an aircraft lasts forever.
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30. In that connection, it must be observed that, according to settled case-law of the Court, the need to provide an interpretation of European Union law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio ECR I‑11987, paragraph 26; and Case C-94/07 Raccanelli [2008] ECR I-5939, paragraph 24).
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24. It must be observed in that regard that, according to settled case-law of the Court, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 26).
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28. Toutefois, il ressort d’une jurisprudence constante que l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêt Commission/France, C‑193/12, EU:C:2013:394, point 21).
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49. The consequence of the allocation of tariff quotas between traditional operators and newcomers is that genuine newcomers are able to act on the market and therefore deploy their economic activities fully (see, to that effect, judgment in Di Lenardo and Dilexport , C‑37/02 and C‑38/02, EU:C:2004:443, paragraphs 84 and 87). In that regard, as is apparent from recital 8 in the preamble to Regulation No 2362/98, the purpose of the eligibility criteria for new operators, in the context of the administration of tariff quotas, is to avoid the registration of purely fictitious agents and thereby combat speculative and artificial practices.
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87. Moreover, action to counteract speculative or artificial practices that, through fictitious agents, increase the number of traditional operators receiving tariff quotas which were however intended for non-traditional operators, is, if it proves effective, capable of providing a means for genuine new operators to act on the market and therefore to deploy their economic activities fully.
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37. While, in those circumstances, dividends from Germany or Portugal are subject to a greater tax burden than are dividends distributed by Netherlands companies, that disadvantage is not attributable to the Netherlands legislation at issue in the main proceedings, but is the product of the parallel exercise of fiscal sovereignty by the Member States in which the distributing companies are established and the Member State in which the recipient company is established, whereby the former chose to impose a series of charges to tax on distributed dividends and the latter opted to refrain from any taxation of dividends with respect to fiscal investment enterprises (see, to that effect, Case C‑513/04 Kerckhaert and Morres [2006] ECR I‑10967, paragraph 20).
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83. The Court has also held that to require the Member State in which the company making the distribution is resident to ensure that profits distributed to a non-resident shareholder are not liable to a series of charges to tax or to economic double taxation, either by exempting those profits from tax at the level of the company making the distribution or by granting the shareholder a tax advantage equal to the tax paid on those profits by the company making the distribution, would mean in point of fact that that State would be obliged to abandon its right to tax a profit generated by an economic activity undertaken on its territory ( Test Claimants in Class IV of the ACT Group Litigation , paragraph 59).
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59. It must be held in that regard, first, that to require the Member State in which the company making the distribution is resident to ensure that profits distributed to a non-resident shareholder are not liable to a series of charges to tax or to economic double taxation, either by exempting those profits from tax at the level of the company making the distribution or by granting the shareholder a tax advantage equal to the tax paid on those profits by the company making the distribution, would mean in point of fact that that State would be obliged to abandon its right to tax a profit generated through an economic activity undertaken on its territory.
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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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44. Indeed, it is clear from the observations of the Spanish Government that it has declared itself prepared to take into account securities lodged with financial bodies of the other Member States, provided that sums relating to the activities carried out on Spanish territory are set aside and held at its disposal. In that regard, it should be noted that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (se e, inter alia, Case C‑103/00 Commission v Greece [2002] ECR I‑1147, paragraph 23, and Case C‑323/01 Commission v Italy [2002] ECR I‑4711, paragraph 8). Moreover, the present case involves a mere declaration by the defendant government and not a concrete legislative or regulatory measure.
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23 It should be observed in this regard that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 18, and Case C-220/99 Commission v France [2001] ECR I-5831, paragraph 33).
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28. As is apparent from the first recital in the preamble to Directive 2003/88, the directive codifies Directive 93/104. Article 7 of Directive 2003/88 concerning the right to paid annual leave reproduces the terms of Article 7 of Directive 93/104 exactly.
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33. In that regard, it should be noted that Article 96 of the VAT Directive provides that the same rate of VAT, namely, the standard rate, is applicable to supplies of goods and services. As an exception to that principle, Article 98(1) of the VAT Directive gives the Member States the option of applying either one or two reduced rates of VAT. In accordance with the first subparagraph of Article 98(2), the reduced rates of VAT can apply only to supplies of goods and services in the categories set out in Annex III to the VAT Directive (judgment in K , C‑219/13, EU:C:2014:2207, paragraphs 21 and 22).
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22. As an exception to that principle, Article 98(1) of the VAT Directive gives the Member States the option of applying either one or two reduced rates of VAT. In accordance with the first subparagraph of Article 98(2), the reduced rates of VAT can apply only to supplies of goods and services in the categories set out in Annex III to the VAT Directive.
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51 THE APPLICANT HAS NOT ALLEGED THAT THIS RESULTED IN THE MINUTES CONTAINING SUBSTANTIAL INACCURACIES OR OMISSIONS WITH REGARD TO IT .
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43. The Court has recognised the existence of a services concession, inter alia, in cases in which the service provider’s remuneration came from payments made by users of a public car park, a public transport system and a cable television network (see Parking Brixen , paragraph 40; Case C‑410/04 ANAV [2006] ECR I‑3303, paragraph 16; and Case C‑324/07 Coditel Brabant [2008] ECR I‑0000, paragraph 24).
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16. It is apparent from the documents relating to the case in the main proceedings that the public transport service in the Municipality of Bari is remunerated, at least in part, through the purchase of tickets by those using it. That method of remuneration characterises a public service concession (Case C‑458/03 Parking Brixen [2005] ECR I-0000, paragraph 40).
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48. Second, it is to be noted that the OHIM Guidelines are not binding legal acts for the purpose of interpreting provisions of European Union law.
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42 It must be stated at the outset that, although the Spanish Government alleges that the contested regulation adversely affects the legitimate expectations of the Member States as well, in all essential respects its arguments refer to breach of the legitimate expectations of the traders concerned. Nevertheless, despite the doubts expressed by the Council, there is nothing to prevent a Member State from claiming in an action for annulment that an act of the institutions frustrates the legitimate expectations of particular individuals (see, in this respect, Case 278/84 Germany v Commission [1987] ECR 1, paragraphs 34 to 36; Case 203/86 Spain v Council [1988] ECR 4563, paragraphs 17 to 20, and Case C-169/95 Spain v Council [1997] ECR I-135, paragraphs 49 to 54).
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36 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 16 MAY 1979 ( CASE 84/78 TOMADINI V AMMINISTRAZIONE DELLE FINANZE DELLO STATO (( 1979 )) ECR 1801 ), THE FIELD OF APPLICATION OF THE PRINCIPLE OF LEGITIMATE EXPECTATION CANNOT BE EXTENDED TO THE POINT OF GENERALLY PREVENTING NEW RULES FROM APPLYING TO THE FUTURE EFFECTS OF SITUATIONS WHICH AROSE UNDER THE EARLIER RULES, ESPECIALLY IN A FIELD SUCH AS THE COMMON ORGANIZATION OF THE MARKETS, THE PURPOSE OF WHICH NECESSARILY INVOLVES CONSTANT ADJUSTMENT TO THE VARIATIONS OF THE ECONOMIC SITUATIONS IN THE VARIOUS AGRICULTURAL SECTORS . THAT OBSERVATION ALSO APPLIES TO ALTERATIONS OF THE REPRESENTATIVE RATES .
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35. Firstly, as regards whether the transport at issue in the main proceedings was exclusive, it is apparent from the file that, in the main proceedings, the gravel was intended solely for use in road maintenance works. It follows that that transport was carried out wholly and exclusively in connection with road maintenance, within the meaning of Article 13(1)(h) of Regulation No 561/2006 (see, to that effect, British Gas , paragraph 21).
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30. It should be recalled that, according to the Court’s case-law, the transfer of an economic activity from a legal person governed by private law to a legal person governed by public law is in principle within the scope of Directive 77/187. Only the reorganisation of structures of the public administration or the transfer of administrative functions between public administrative authorities is excluded from that scope (Case C-298/94 Henke [1996] ECR I-4989, paragraph 14, and Mayeur , paragraphs 29 to 34).
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33 Articles 1(1) and 2(b) of Directive 77/187 do not therefore permit the transfer of an economic activity from a legal person governed by private law to a legal person governed by public law to be excluded from the scope of Directive 77/187 solely on the ground that the person to whom the activity is transferred is a public-law body. Only the reorganisation of structures of the public administration or the transfer of administrative functions between public administrative authorities are excluded, by the judgment in Henke, from the scope of that directive.
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61
The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 242, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 100).
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58 Finally, in view of the essential nature of the formalities which were not complied with and of the probability of losses, or even fraud, to the detriment of the Community budget, the amount disallowed by the Commission, which was limited to 2% of the expenditure involved, cannot be regarded as excessive and disproportionate (Case C-49/94 Ireland v Commission [1995] ECR I-2683, paragraph 22).
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22 In view of the essential nature of the formalities which were not complied with and of the fact that it was not possible to check that the time-limit within which the products were to be exported was observed, and in view, therefore, of the probability of losses, or even fraud, to the detriment of the Community budget, the amount disallowed by the Commission, which was limited to 2% of the expenditure involved, cannot be regarded as excessive and disproportionate. This plea must therefore also be dismissed.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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33. Finally, as regards the question whether national legislation such as the legislation at issue in the main proceedings constitutes a restriction within the meaning of Article 45 TFEU, it must be pointed out that all of the provisions of the FEU Treaty relating to the freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of the Member States at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see, in particular, Bosman , cited above, paragraph 94; Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 25; and Case C‑208/05 ITC [2007] ECR I‑181, paragraph 31).
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25. In that regard, the Court has held on numerous occasions that the Treaty provisions relating to freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Joined Cases 154/87 and 155/87 Wolf and Others [1988] ECR 3897, paragraph 13, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 94, and Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 37, and Case C-190/98 Graf [2000] ECR I-493, paragraph 21).
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42. It must be stated that, as observed by F‑Tex and the Lithuanian and German Governments, the exercise of the right acquired by an assignee is subject to rules other than those applicable in insolvency proceedings.
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35. As regards the primary argument, it must be remembered that, as a derogation from the fundamental rule of freedom to provide services, Article 55 EC, read in conjunction with the first paragraph of Article 45 EC, must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests which it allows the Member States to protect (see, to that effect, Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 45 and the case-law cited).
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45. In that regard, it must be remembered that, as derogations from the fundamental rule of freedom of establishment, Articles 45 EC and 55 EC must be interpreted in a manner which limits their scope to what is strictly necessary for safeguarding the interests which those provisions allow the Member States to protect (Case 147/86 Commission v Greece [1988] ECR 1637, paragraph 7, and Case C-114/97 Commission v Spain [1998] ECR I-6717, paragraph 34).
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41. In order to answer that question, an underlying preliminary question, which is apparent from the grounds for the reference for a preliminary ruling and the problem set out therein by the national court, must first be considered, namely, whether the fact that the statutory sickness insurance funds at issue in the main proceedings are expressly mentioned in Annex III to Directive 2004/18 is sufficient for them to be regarded, on that ground alone, as bodies governed by public law and therefore, as contracting authorities.
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43. However, the provisions of Directive 92/50 and the Court’s case-law do not allow, a priori and without further consideration, a tenderer to be excluded from participation in a procedure for the award of a public contract on the sole ground that, as a result of public subsidies which it receives, it is able to submit tenders at prices which are significantly lower than those of unsubsidised tenderers (see, to that effect, the judgments in ARGE , EU:C:2000:677, paragraphs 25 to 27, and CoNISMa , EU:C:2009:807, paragraphs 34 and 40).
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25 Nevertheless, as the Austrian and French Governments and the Commission have argued, the mere fact that contracting authorities allow bodies which receive subsidies enabling them to submit tenders at prices appreciably lower than those of the other, unsubsidised, tenderers, to take part in a procedure for the award of a public procurement contract does not amount to a breach of the principle of equal treatment.
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33. It also follows from the case-law that the European schools are an international organisation which, despite the functional links which it has with the European Union, remains formally distinct from it and from its Member States (see, to that effect, judgment in Miles and Others , EU:C:2011:388, paragraph 42).
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62 It is therefore necessary to consider whether that difference in treatment is incompatible with the prohibition laid down in the second subparagraph of Article 40(3) of the Treaty, which is merely a specific enunciation of the general principle of equality, one of the fundamental principles of Community law (see in particular Joined Cases 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hamburg-St Annen [1977] ECR 1753, paragraph 7, Joined Cases 124/76 and 20/77 Moulins et Huileries de Pont-à-Mousson and Another v Office Interprofessionnel des Céréales [1977] ECR 1795, paragraph 16, Case 125/77 Koninklijke Scholten-Honig v Hoofdproduktschap voor Akkerbouwprodukten [1978] ECR 1991, paragraph 26, and Joined Cases 103/77 and 145/77 Royal Scholten-Honig v Intervention Board for Agricultural Products [1978] ECR 2037, paragraph 26), or whether, on the contrary, it may be objectively justified, as contended by, in particular, the Council and the Commission, by the need to restore the competitive balance between those categories of operators.
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7 THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY PROVIDES THAT THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ' SHALL EXCLUDE ANY DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY ' .
WHILST THIS WORDING UNDOUBTEDLY PROHIBITS ANY DISCRIMINATION BETWEEN PRODUCERS OF THE SAME PRODUCT IT DOES NOT REFER IN SUCH CLEAR TERMS TO THE RELATIONSHIP BETWEEN DIFFERENT INDUSTRIAL OR TRADE SECTORS IN THE SPHERE OF PROCESSED AGRICULTURAL PRODUCTS .
THIS DOES NOT ALTER THE FACT THAT THE PROHIBITION OF DISCRIMINATION LAID DOWN IN THE AFORESAID PROVISION IS MERELY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW .
THIS PRINCIPLE REQUIRES THAT SIMILAR SITUATIONS SHALL NOT BE TREATED DIFFERENTLY UNLESS DIFFERENTIATION IS OBJECTIVELY JUSTIFIED .
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56. The Court has held in particular that the creation of a grouping of municipalities and the taking over by the latter of certain competences of municipalities forming part of that grouping constitutes a rearrangement of the exercise of public powers and cannot therefore fall within Directive 77/187 (see Henke , paragraphs 16 and 17), while holding in other cases that the transfer of staff carrying out activities of an economic nature within a public administration falls within that directive (see, in particular, Hidalgo and Others , paragraph 24; Collino and Chiappero , paragraph 32).
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42
Thus, it does not appear that the national legislation at issue in the main proceedings establishes a difference of treatment on grounds of disability, in terms of the combined provisions of Article 1 and Article 2(2)(a) of Directive 2000/78, since it uses a criterion that is not inseparably linked to disability (see, by analogy, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 72 to 74).
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73. It should be observed that a person whose employer terminates his employment contract with a shortened notice period solely on grounds of illness does not fall within the general framework laid down for combating discrimination on grounds of disability by Directive 2000/78 (see, by analogy, Chacón Navas , paragraph 47).
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79. It is precisely because of that principle of mutual confidence that the European Union legislature adopted Regulation No 343/2003 and the conventions referred to in paragraphs 24 to 26 of the present judgment in order to rationalise the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on State authorities to examine multiple claims by the same applicant, and in order to increase legal certainty with regard to the determination of the State responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating Member States.
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36. The Court has already answered an identical question in the affirmative in paragraphs 59 to 63 of the judgment in Stichting Zuid‑Hollandse Milieufederatie .
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60. Next, it should be recalled that the purpose of Article 8(2) of Directive 91/414 and of Article 16(1) of Directive 98/8 is to allow the Member States, during the transitional periods defined in those two directives, to apply existing national authorisation procedures for the placing on the market of the products covered by those directives and containing active substances which have not yet been evaluated at Community level.
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28. The principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, on the one hand, that rules of law must be clear and precise and, on the other, that their application must be foreseeable by those subject to them (judgment in Plantanol , C‑201/08, EU:C:2009:539, paragraph 46 and the case-law cited).
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168
Thus, although the Court has accepted, in the context particular to betting and gaming, that there may be justification for a restriction such as the granting of a monopoly to a public body entrusted, inter alia, with the task of financing social actions or welfare, it is apparent from the Court’s decisions that that has been the case only with regard to a certain number of overriding reasons relating to the public interest, such as, for example, the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling as well as the general need to preserve public order, and in the light of certain moral, religious or cultural factors associated with betting and gaming (see to that effect, inter alia, judgments in Läärä and Others, C‑124/97, EU:C:1999:435, paragraphs 41 and 42; Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraphs 66, 67 and 72; and Stoß and Others, C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504, paragraphs 79 and 81 to 83).
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66. In that regard, it is apparent from the national legal framework, set out in paragraphs 12 to 19 of the present judgment, that the organisation and functioning of Santa Casa are governed by considerations and requirements relating to the pursuit of objectives in the public interest. The Gaming Department of Santa Casa has been given the powers of an administrative authority to open, institute and prosecute proceedings involving offences of illegal operation of games of chance in relation to which Santa Casa has the exclusive rights.
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17. It follows from all the foregoing that the Commission’s application must be dismissed as inadmissible.
Costs
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78. In so far as concerns the reasons why such advice was not followed by that authority, it is true that, as is required of the European Union institutions when adopting measures (see Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 166), that authority must disclose the reasons for designating an event as one of major importance in such a way as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Commission and the competent Courts to exercise their power of review.
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166. It is clear from settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63; Case C-42/01 Portugal v Commission [2004] ECR I‑6079, paragraph 66; and Case C-390/06 Nuova Agricast [2008] ECR I-0000, paragraph 79).
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33 The VAT system is not disturbed as a result of such deduction since there is no need to readjust the taxable amount for the intermediate transactions. On the contrary, that amount remains unchanged since, for those transactions, observance of the principle of neutrality is ensured by application of the conditions for deduction set out in Title XI of the Sixth Directive. Under those conditions, the intermediate links in the distribution chain, such as wholesalers and retailers, may deduct from their own taxable amount the sums paid by each to his own supplier in respect of VAT on the corresponding transaction and thus pass on to the tax authorities the part of the VAT representing the difference between the price paid by each to his supplier and the price at which he supplied the goods to his purchaser.
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22 The Court has held that workers employed by a business established in one Member State who are temporarily sent to another Member State to provide services do not, in any way, seek access to the labour market in that second State if they return to their country of origin or residence after completion of their work (Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 15, and C-43/93 Vander Elst [1994] ECR I-3803, paragraph 21).
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15 The situation is different, however, in a case such as that in the main proceedings where there is a temporary movement of workers who are sent to another Member State to carry out construction work or public works as part of a provision of services by their employer . In fact, such workers return to their country of origin after the completion of their work without at any time gaining access to the labour market of the host Member State .
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370. The existence of such pressure does nothing to alter the reality and the gravity of the infringement committed by LR A/S.
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25 It is apparent from the documents before the Court that Payroll is a limited liability company under Italian law, formed on 29 July 1999 by the two French undertakings ADP Europe SA and ADP GSI SA which together own its share capital. As a subsidiary of those two undertakings, Payroll forms part of a group of companies, established in various Member States, which offer computer services for the calculation and printing of pay slips. The legal position of a company such as Payroll therefore comes within the scope of Community law by virtue of the provisions of Article 43 EC (see, to that effect, Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 16).
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16 In this regard, it is clear from the observations submitted to the Court and from the details provided at the hearing that Grandvision is a limited-liability company which was established under Belgian law in 1990 under the name Vision Express Belgium SA by the Netherlands company VE Holdings BV. As a subsidiary of Vision Express UK Ltd, a company governed by English law, it belongs to a group of companies established in various Member States which markets products and services in the optics sector. The legal position of such a company comes within the scope of Community law pursuant to the provisions of Article 52 of the Treaty.
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62. It has also been held that the fundamental principle of VAT neutrality requires deduction of input tax to be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements. Where the tax authority has the information necessary to establish that the taxable person is, as the recipient of the supplies in question, liable to VAT, it cannot impose, in relation to the right of that taxable person to deduct that tax, additional conditions which may have the effect of rendering that right ineffective for practical purposes (see Ecotrade , paragraphs 63 and 64; Nidera Handelscompagnie , paragraph 42; and Case C-438/09 Dankowski [2010] ECR I-14009, paragraph 35).
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18. It should be recalled that the equal treatment rule which appears both in Article 48 of the EC Treaty (now, after amendment, Article 39 EC) and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination on grounds of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result ( Meints , paragraph 44).
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44 The Court has consistently held that the equal treatment rule laid down in Article 48 of the EC Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see, inter alia, Case C-237/94 O'Flynn v Adjudication Officer [1996] ECR I-2617, paragraph 17).
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30. À titre liminaire, il convient de rappeler que, selon une jurisprudence constante, le droit d’obtenir le remboursement d’impôts perçus dans un État membre en violation du droit de l’Union est la conséquence et le complément des droits conférés aux contribuables par les dispositions du droit de l’Union telles qu’elles ont été interprétées par la Cour. Un État membre est ainsi tenu, en principe, de rembourser les impôts perçus en violation du droit de l’Union (voir arrêt du 19 juillet 2012, Littlewoods Retail e.a., C‑591/10, point 24 et jurisprudence citée).
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31. With regard to the scope of Article 18(1) EC, the Court has already held that the opportunities offered by the Treaty in relation to freedom of movement cannot be fully effective if a national of a Member State can be deterred from availing himself of them by obstacles raised to his residence in the host Member State by legislation of his State of origin penalising the fact that he has used them (Case C‑224/02 Pusa [2004] ECR I‑5763, paragraph 19, and Tas-Hagen and Tas , paragraph 30).
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30. With regard to the scope of Article 18(1) EC, the Court has already held that the opportunities offered by the Treaty in relation to freedom of movement cannot be fully effective if a national of a Member State can be deterred from availing himself of them by obstacles raised to his residence in the host Member State by legislation of his State of origin penalising the fact that he has used them (Case C‑224/02 Pusa [2004] ECR I‑5763, paragraph 19).
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68. Secondly, it is clear from the order for reference that the concession granted in 1984 was to have effect until 2029. Thus, its early termination pursuant to Decree-Law 273/2005, the effect of which will be that the Comune di Rodengo Saiano will have to make the award of a new concession subject to competitive tendering, could constitute enhanced compliance with Community law.
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47. Under Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 34 and 35, and Case C-208/03 P Le Pen v Parliament [2005] ECR I-6051, paragraph 39).
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35 That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.
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119. Or, il convient de souligner, d’une part, que les régimes fiscaux litigieux n’ont pas été notifiés à la Commission en vertu de l’article 88, paragraphe 3, CE. Dès lors, si la Commission est certes tenue d’agir dans un délai raisonnable dans le cadre d’une procédure d’examen d’aides d’État et si elle n’est pas autorisée à perpétuer un état d’inaction pendant la phase préliminaire d’examen (voir arrêts du 17 juillet 2008, Athinaïki Techniki/Commission, C‑521/06 P, Rec. p. I‑5829, point 40, ainsi que Diputacion Foral de Vizcaya e.a./Commission, précité, point 155), elle n’était pas, en l’espèce, soumise, en l’absence de notification des régimes fiscaux litigieux, à la règle du délai d’examen de deux mois prévu à l’article 4, paragraphe 5, du règlement n° 659/1999 et dont l’origine se trouve dans l’arrêt du 11 décembre 1973, Lorenz (120/73, Rec. p. 1471).
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18 The Court has also held that in exceptional circumstances the absence of a periodic report may be compensated for by the existence of other information on an official' s merits (judgment in Joined Cases 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, paragraph 22).
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22 ON SEVERAL OCCASIONS , AND MOST RECENTLY IN ITS JUDGMENT OF 5 JUNE 1980 IN CASE 24/79 OBERTHUR ( 1980 ) ECR 1743 , THE COURT HAS STRESSED THE IMPORTANCE OF THE PERIODIC REPORT AS A CRITERION OF ASSESSMENT EACH TIME AN OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION . THUS , PURSUANT TO ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS , OFFICIALS MAY BE PROMOTED ONLY AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM . ALTHOUGH IT IS TRUE THAT IN EXCEPTIONAL CIRCUMSTANCES THE ABSENCE OF PERIODIC REPORTS MAY BE COMPENSATED FOR BY THE EXISTENCE OF OTHER INFORMATION ON AN OFFICIAL ' S MERITS , SUCH IS NOT , HOWEVER , THE CASE WITH A REPORT IRREGULARLY INCLUDED IN A PERSONAL FILE AFTER IT HAS BEEN CHALLENGED BY THE OFFICIAL . MOREOVER , THE MERE EXISTENCE OF A PROPOSAL FOR PROMOTION , EVEN IN EULOGISTIC TERMS , AND A LIST OF THE OFFICIAL ' S PUBLICATIONS , DRAWN UP BY HIM AND CONTAINING NO OBJECTIVE ASSESSMENT OF THEIR SCIENTIFIC VALUE , CANNOT MAKE UP FOR THE ABSENCE OF A PROPER PERIODIC REPORT .
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27. Furthermore, it is apparent from recital 44 in the preamble to Directive 2001/29 that the EU legislature meant to envisage, when Member States provide for the exceptions or limitations referred to by that directive, that the scope of those exceptions or limitations could be limited even more when it comes to certain new uses of copyright works and other subject-matter. By contrast, neither that recital nor any other provision of that directive envisages the possibility of the scope of such exceptions or limitations being extended by the Member States.
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55 The Court has consistently inferred from the wording of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, as well as from the objective of Decision No 1/80, that the principles enshrined in Articles 48, 49 and 50 of the Treaty must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80 (see, to that effect, Bozkurt, paragraphs 14, 19 and 20, Tetik, paragraphs 20 and 28, Birden, paragraph 23, Case C-36/96 Günaydin v Freistaat Bayern [1997] ECR I-5143, paragraph 21, and Case C-98/96 Ertanir v Land Hessen [1997] ECR I-5179, paragraph 21).
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14 It should first be noted that Decision No 2/76 is presented, in Article 1 thereof, as constituting a first stage in securing freedom of movement for workers between the Community and Turkey which was to last for four years as from 1 December 1976. Section 1 of Chapter II, headed "Social Provisions", of Decision No 1/80, which includes Article 6, constitutes a further stage in securing freedom of movement for workers and has applied, pursuant to Article 16, since 1 December 1980. As from that date, Article 6 of Decision No 1/80 has replaced the corresponding, less favourable, provisions of Decision No 2/76. That being so, for the purposes of giving a helpful answer to the questions submitted to the Court, and having regard to the times at which the facts summarized above occurred, it is solely to Article 6 of Decision No 1/80 that reference should be made.
The first 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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113
Next, it follows from Articles 2(1) and 4 of Directive 2006/123 that the latter applies to any self-employed economic activity, normally provided for remuneration, by a provider established in a Member State, whether or not the provider is established in a stable and continuous manner in the Member State in which the services are provided, with the exception of the activities expressly excluded (see, to that effect, judgment in Femarbel, C‑57/12, EU:C:2013:517, paragraph 32).
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32. Directive 2006/123 thus applies, pursuant to Articles 2(1) and 4 thereof, to any self-employed economic activity, normally provided for remuneration, by a provider established in a Member State, regardless of whether the provider is established in a stable and continuous manner in the Member State in which the services are provided, with the exception of the activities expressly excluded, which include ‘healthcare services’ and ‘social services’, referred to in Article 2(2)(f) and Article 2(2)(j) respectively, provisions referred to in the national court’s question.
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34. It follows that the validity of an act of the Union may be affected by the incompatibility of that act with such rules of international law (judgment in Air Transport Association of America and Others , C‑366/10, EU:C:2011:864, paragraph 51).
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