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31
Admittedly, the principle that procurement procedures must ensure equal treatment and be transparent means that the adjudicating authority must interpret the award criteria in the same way throughout the entire procedure (judgments of 18 October 2001, SIAC Construction, C‑19/00, EU:C:2001:553, paragraph 43, and of 18 November 2010, Commission v Ireland, C‑226/09, EU:C:2010:697, paragraph 59 and the case-law cited).
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59. Next, it should be noted that, in such a factual context, as the Court has already held, the principles of equal treatment and transparency of tender procedures imply an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure (see, by analogy, Case C‑448/01 EVN and Wienstrom [2003] ECR I‑14527, paragraph 92).
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21IN PARTICULAR , THE FACT THAT THE FIXING OF CERTAIN CONDITIONS OF EMPLOYMENT - SUCH AS A SPECIAL AGE-LIMIT - MAY HAVE PECUNIARY CONSEQUENCES IS NOT SUFFICIENT TO BRING SUCH CONDITIONS WITHIN THE FIELD OF APPLICATION OF ARTICLE 119 , WHICH IS BASED ON THE CLOSE CONNEXION WHICH EXISTS BETWEEN THE NATURE OF THE SERVICES PROVIDED AND THE AMOUNT OF REMUNERATION .
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59 In such a situation, in contrast to that giving rise to the judgments cited above in Bachmann and Commission v Belgium (see Bachmann, paragraph 28, and Commission v Belgium, paragraph 20), the coherence of the tax system can be safeguarded by measures which are less restrictive or less prejudicial to freedom of establishment, relating specifically to the risk of a definitive departure of the taxpayer, in respect of all types of share transfers entailing the same objective risk.
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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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32. With regard to the objective element, it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved (see, inter alia, Case C‑110/99 Emsland-Stärke [2000] ECR I‑11569, paragraph 52, and Case C‑515/03 Eichsfelder Schlachtbetrieb [2005] ECR I‑7355, paragraph 39).
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195. In that regard, it should be noted first that, in doing so, the Court of First Instance carried out a legal classification of the facts in order to decide whether the ‘care’ requirement was fulfilled (see, by analogy, Biegi Nahrungsmittel and Commonfood v Commission , paragraphs 42 and 43). Consequently, contrary to the Commission’s assertion, CMF’s challenge concerning the invoicing errors is admissible.
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43. In those circumstances, the appellants contest the Court of First Instance’s answer to a question of the legal classification of the facts, and thus submit a question of law to review by the Court of Justice.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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33 In relation to the arguments relied upon by the Italian Government to justify that restriction, it is appropriate to point out that it is also settled case-law that the freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where it is established (see, in particular, the above-cited judgments in Parodi, paragraph 21; Arblade and Others, paragraph 34; and Commission v Italy, paragraph 23).
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21 It must be remembered, however, that, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established. In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives (see, in particular, Case 279/80 Webb [1981] ECR 3305, paragraphs 17 and 20; Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 27; and Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221, paragraph 15).
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32. It follows from the above analysis that the term database as defined in Article 1(2) of the directive refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.
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36. The appellants maintain, moreover, that such damages are likely to dissuade the undertakings concerned from assisting the competition authorities to investigate cases, which runs contrary to the principle of effectiveness. However, it must be noted that the leniency programme is a programme developed by the Commission, through its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), which has no legislative force and is not binding on Member States ( Pfleiderer EU:C:2011:389, paragraph 21). Consequently, that leniency programme cannot deprive individuals of the right to obtain compensation before the national courts for loss sustained as a result of an infringement of Article 101 TFEU.
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21. With regard to the Commission notices, one on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43) and one on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), it should be pointed out that those notices are not binding on Member States. Further, the latter notice relates only to leniency programmes implemented by the Commission itself.
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32 It is clear from the wording of Article 4(2)(b) of Directive 69/335 that, when the Community legislature intended to limit the scope of a provision of that directive specifying the chargeable event for capital duty to transactions carried out by members of the capital company receiving the contributions, it did so clearly by referring to members expressly.
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57. Nevertheless, when adopting measures to implement Community legislation, national authorities must exercise their discretion in compliance with the general rules of Community law, which include the principles of proportionality, legal certainty and the protection of legitimate expectations (see, to that effect, Case C-313/99 Mulligan and Others [2002] ECR I-5719, paragraphs 35 and 36).
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36 Consequently, a clawback measure such as that at issue in the main proceedings must be established and applied in compliance with the principles of legal certainty and protection of legitimate expectations (see, to that effect, in particular Case C-63/93 Duff and Others [1996] ECR I-569, paragraph 34). Moreover, it must be proportionate to the aim pursued (see, to that effect, in particular Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809, paragraphs 30 and 31) and applied without discrimination (see, to that effect, in particular Klensch and Others, paragraph 8). Similarly, such a measure must respect fundamental rights, such as the right to property (see, to that effect, in particular Case C-2/92 Bostock [1994] ECR I-955, paragraphs 16 and 20) and the freedom to pursue a trade or profession (see, to that effect, in particular Joined Cases C-90/90 and C-91/90 Neu and Others [1991] ECR I-3617, paragraph 13).
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7 THE EXTENSION TO IMPORTED PRODUCTS OF A REQUIREMENT THAT THEY CONTAIN A SPECIFIC AMOUNT OF DRY MATTER MAY PREVENT BREAD ORIGINATING IN OTHER MEMBER STATES FROM BEING MARKETED IN THE STATE CONCERNED . IT MAY MAKE IT NECESSARY TO VARY THE METHOD OF MANUFACTURE ACCORDING TO THE PLACE WHERE THE BREAD IS TO BE SOLD AND THUS IMPEDE THE MOVEMENT OF BREAD LAWFULLY PRODUCED IN THE MEMBER STATE OF ORIGIN IF IDENTICAL MANUFACTURING STANDARDS ARE NOT PRESCRIBED IN THAT STATE .
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42. After all available internal procedures have been exhausted, the Court of Justice shall have jurisdiction in any dispute between the ECB and a member or a former member of its staff to whom these Conditions of Employment apply.
Such jurisdiction shall be restricted to the legality of the measure or decision, unless the dispute is of a financial nature, in which case the Court of Justice shall have unlimited jurisdiction.’
4. Pursuant to Article 12.3 of the ESCB Statute, the Governing Council adopted the Rules of Procedure of the ECB, as amended on 22 April 1999 (OJ 1999 L 125, p. 34), which provide inter alia as follows:
‘Article 11
Staff of the ECB
11.1. Each member of the staff of the ECB shall be informed of his/her position within the structure of the ECB, his/her reporting line and his/her professional responsibilities.
...
Article 21
Conditions of Employment
21.1. The employment relationship between the ECB and its staff shall be determined by the Conditions of Employment and the Staff Rules.
21.2. The Conditions of Employment shall be approved and amended by the Governing Council upon a proposal from the Executive Board. The General Council shall be consulted under the procedure laid down in these Rules of Procedure.
21.3. The Conditions of Employment shall be implemented by Staff Rules, which shall be adopted and amended by the Executive Board.’
Background to the dispute
5. Mr Pflugradt has been employed by the ECB since 1 July 1998. He was appointed to the Directorate-General for Information Systems (‘DG IS’), where from the time he was recruited he has worked as UNIX coordinator.
6. On 9 October 1998 the appellant agreed to the terms of a document entitled ‘UNIX coordinator responsibilities’, which contained a list of the various duties attaching to his post. Those duties included conducting appraisals with members of the UNIX team.
7. On 13 October 1998 the ECB sent the appellant a letter of appointment with retroactive effect to 1 July 1998.
8. On 14 October 1999 the Director-General of DG IS informed the appellant that he would not be responsible for preparing performance appraisals for members of the UNIX team.
9. On 23 November 1999 the appellant had an appraisal interview with his head of division. The head of division set out his assessment of the appellant in the latter’s performance appraisal for 1999, which is the document contested in Case T‑178/00.
10. On 12 January 2000 the appellant put forward several observations on the assessment made of him and wrote on his performance appraisal for 1999 that he reserved the right to reject an unfair appraisal.
11. On 10 March 2000 the appellant applied, under Article 41 of the Conditions of Employment, for an administrative review of the performance appraisal for 1999 on the ground that it was based on factual errors and therefore infringed his contractual rights. He also requested another appraisal for 1999, to be conducted by other persons who would be unbiased.
12. On 10 April 2000 the Director-General of DG IS rebutted the appellant’s claims that the performance appraisal for 1999 contained factual errors and turned down the request for another appraisal procedure to be initiated.
13. On 9 May 2000 the appellant submitted a complaint to the President of the ECB under the grievance procedure, based essentially on the grounds relied on in the context of the administrative review procedure.
14. On 8 June 2000 the President of the ECB dismissed that complaint.
15. By note of 28 June 2000 the Director-General of DG IS sent the appellant a list of his main responsibilities, stating that that list would provide the basis for his annual appraisal. That document was the subject of the action in Case T-341/00.
The judgment under appeal
16. Having joined the two cases (T-178/00 and T-341/00), the Court of First Instance first found that, in his action in Case T-178/00, Mr Pflugradt was seeking annulment of the performance appraisal for 1999 first, in so far as it withdraws from him responsibility for appraising members of the UNIX team and, second, in so far as it contains various assessments of his work.
17. In dismissing those claims, the Court held, in paragraphs 49 and 53 of the judgment under appeal, that although the employment relationship between the ECB and its staff is of a contractual nature and although the binding force of contracts precludes the ECB as an employer from imposing alterations to the conditions under which employment contracts are performed without the consent of the staff members concerned, that principle applies only to the essential elements of the employment contract.
18. In that connection, the Court of First Instance held in paragraph 54 of the judgment under appeal:
‘The ECB, like any other institution or undertaking, has management powers in the organisation of its services and in the management of its staff. As a Community institution it even enjoys wide discretion in the organisation of its services and in the assignment of its staff to perform its public service responsibilities (see, by analogy, the judgments of the Court of Justice in Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 17, and Case C‑294/95 P Ojha v Commission [1996] ECR I-5863, paragraph 40; and the judgments of the Court of First Instance in Case T-33/90 Von Bonkewitz-Lindner v Parliament [1991] ECR II-1251, paragraph 88, and Case T-176/97 Hick v ESC [1998] ECR-SC I-A-281 and II-845, paragraph 36). It may therefore over time develop its employment relationships with its staff in the best interests of the service in order to arrive at an effective organisation of work and a consistent allocation of the various duties among members of the staff and to adapt to varying needs. A member of staff recruited to a post for an indefinite period which might last until he reached the age of 65 cannot reasonably expect that every aspect of internal organisation will remain unchanged for his entire career or that he will retain throughout his career the responsibilities allocated to him at the time of his appointment.’
19. In paragraphs 58 to 60 of the judgment under appeal, the Court of First Instance then held:
‘58 It is common ground that despite the alteration of his responsibilities the applicant retained his job as UNIX coordinator, falling within the category of professionals and Grade G, with the relevant remuneration.
59 It is clear from the job description of 5 October 1998 that the post of UNIX coordinator is essentially of a technical nature, and that the staff-related and administrative duties are merely secondary. Thus, withdrawal of the duty of appraising members of the UNIX team did not by itself result in downgrading, as a whole, the applicant’s duties clearly below the responsibilities corresponding to his job. In that regard it is appropriate to point out that it is common ground that the applicant has never had to conduct appraisals for members of the UNIX team, as that responsibility was withdrawn from him even before the ECB embarked upon the first round of annual appraisals for its staff. In those circumstances the alteration in question does not represent a downgrading of the applicant’s job and cannot therefore be regarded as infringing an essential element of the employment contract.
60 Consequently, the applicant’s complaints are unfounded. That plea must therefore be rejected.’
20. In dismissing the plea concerning the assessment made in the performance appraisal for 1999, the Court of First Instance held, in paragraphs 68 to 71 of the judgment under appeal:
‘68 Although he claims that the performance appraisal for 1999 is based on material factual errors, the applicant is seeking in fact to challenge the validity of the assessments made by his superiors of his work during 1999.
69 It is not, however, for the Court to substitute its assessment for that of the persons responsible for appraising the applicant’s work. The ECB, like other institutions and bodies of the Community, enjoys wide discretion in appraising the work of members of its staff. Judicial review by the Court of the assessments contained in the annual performance appraisal of a member of the ECB staff relates only to possible procedural irregularities, manifest factual errors in such assessments and any misuse of power (see, by analogy, Case T-63/89 Latham v Commission [1991] ECR II-19, paragraph 19).
70 In the present case, as the applicant has failed to establish the existence of circumstances of that nature his complaints cannot be accepted.
71 Moreover, the reasoning in the performance appraisal for 1999 is sufficiently precise to satisfy the requirements of Article 253 EC, applicable under Article 34.2 of the ESCB Statute to decisions taken by the ECB.’
21. Second, the Court of First Instance found that Mr Pflugradt, in his submissions in Case T-341/00, sought to obtain the annulment of the decision contained in the note of 28 June 2000 in which the ECB, in his opinion, altered his responsibilities.
22. In paragraphs 81 and 82 of the judgment under appeal, the Court of First Instance accepted that that note constituted a measure adversely affecting the applicant and therefore declared the application admissible.
23. However, it dismissed those submissions on the merits, holding in paragraphs 89 and 90 of that judgment:
‘89 First, as the Court has held in paragraph 54 in relation to Case T-178/00, the applicant cannot reasonably expect to retain until retirement age certain specific duties which may have been allocated to him when he was appointed by the ECB. Therefore the applicant’s claims with regard to his allegedly exclusive areas of responsibility must be dismissed.
90 Second, as regards whether the ECB manifestly exceeded the limits of its organisational authority by unilaterally altering the applicant’s responsibilities, it should be noted first that it is not disputed that those alterations were made in the interest of the service. Secondly, the applicant has not supported his arguments with detailed evidence sufficient to demonstrate that those alterations affect essential aspects of his employment contract by reducing his responsibilities as a whole clearly below those which correspond to his post and that they therefore constitute a downgrading of that post. On the contrary, it is plain that the applicant retains his essential duties with regard to the UNIX systems and the coordination of the UNIX specialists. The applicant’s complaints regarding an alleged downgrading of his post must therefore be rejected.’
Forms of order sought
24. Mr Pflugradt claims that the Court should:
– annul the judgment under appeal;
– annul the performance appraisal for 1999;
– annul the note of 28 June 2000 in so far as it alters the responsibilities of the appellant;
– order the ECB to pay the costs.
25. The ECB contends that the Court should:
– dismiss the appeal;
– order Mr Pflugradt to pay the costs.
The appeal
26. The many arguments put forward by Mr Pflugradt must be regarded as constituting claims that the Court of First Instance made errors of law, distorted pleas, arguments and evidence, disregarded the rules of evidence and that its judgment was vitiated by contradictory grounds.
27. It is logical to group these claims into three sets of pleas concerning, respectively, the contractual nature of the employment relationship between the ECB and its staff, the misapplication of the principles governing the Community civil service and the facts on which the performance appraisal for 1999 was based.
The pleas concerning the contractual nature of the employment relationship between the ECB and its staff
28. Mr Pflugradt submits that, as the legal relationship between the ECB and its staff is of a contractual nature as provided by the first sentence of Article 9(a) of the Conditions of Employment, defined pursuant to Article 36.1 of the ESCB Statute, the Court of First Instance could not, without committing an error in law, base its determination of the ECB’s powers of organisation on the case-law on the rules on assignment of officials and other servants referred to in Article 283 EC.
29. As a preliminary point, it must be observed that, under Article 36.2 of the ESCB Statute and Article 42 of the Conditions of Employment, the Court’s jurisdiction in disputes between the ECB and its staff is restricted to the legality of the measure or decision, unless the dispute is of a financial nature.
30. In the present case, it is common ground that the dispute brought before the Court of First Instance by Mr Pflugradt was not of a financial nature. Accordingly, it had only to rule on the legality of the contested measures, that is to say, to determine whether those adopting the measures had respected the legal obligations incumbent upon them, and was not required to rule on whether the measures taken by the ECB were within the terms of the employment contract at issue and its implementing rules.
31. It must be borne in mind that the employment relationship between the ECB and its staff is defined by the Conditions of Employment, adopted by the Governing Council, on a proposal from the Executive Board of the ECB, on the basis of Article 36.1 of the ESCB Statute. They provide, in Article 9(a), that ‘[e]mployment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction with these Conditions of Employment’. Article 10(a) of those conditions provides that ‘[e]mployment contracts between the ECB and its members of staff shall take the form of letters of appointment which shall be countersigned by members of staff’.
32. It must be found that those provisions are comparable to those of the Staff Regulations of the European Investment Bank (‘EIB’) regarding which the Court concluded that the system adopted for the employment relations between the EIB and its employees is contractual and is accordingly founded on the principle that individual contracts concluded between the EIB and each of its employees constitute the outcome of an agreement resting on mutual consent (Case 110/75 Mills v EIB [1976] 955, paragraph 22, and Case C-449/99 P EIB v Hautem [2001] ECR I‑6733, paragraph 93).
33. It must therefore be held that the employment relationship between the ECB and its staff is contractual rather than governed by public service regulations.
34. However, the contract at issue was concluded with a Community body, entrusted with public interest responsibilities and authorised to lay down, by regulation, provisions applicable to its staff. It follows that the consent of the parties to such a contract is necessarily circumscribed by all manner of obligations deriving from those particular responsibilities and incumbent upon both the management bodies of the ECB and its staff. It cannot be disputed that the Conditions of Employment are intended to meet those obligations and enable the ECB, in accordance with the third recital of the Conditions of Employment, to secure ‘the service of staff of the highest standard of independence, ability, efficiency and integrity …’.
35. On that point, according to Article 9(a) of the Conditions of Employment, the employment contracts are issued in conjunction with those conditions. Accordingly, by countersigning the letter of appointment provided for by Article 10(a) of the Conditions of Employment, staff agree to be bound by those conditions without being able to negotiate individually any of their terms. Consent is thus to an extent limited to acceptance of the rights and obligations laid down by the Conditions of Employment. It must be borne in mind that, as regards the interpretation of those rights and obligations, Article 9(c) of the Conditions of Employment provides that the ECB is to show due regard for the authoritative principles of the regulations, rules and case-law which apply to the staff of the EC institutions.
36. It is true that the employment contracts of members of the ECB staff may contain other terms agreed to by the member of staff concerned following discussion, relating, for example, to the essential features of the tasks entrusted to him. However, the existence of such terms does not in itself preclude the exercise by the management bodies of the ECB of their discretion to implement the measures entailed by the public interest obligations deriving from the particular responsibilities entrusted to the ECB. Those bodies may for instance be compelled, in order to meet such requirements of the service, and in particular to enable it to adapt to new needs, to take unilateral decisions or measures liable to alter inter alia the implementing conditions of employment contracts.
37. It follows that, in exercising that discretion, the management bodies of the ECB are not in any different position from that in which the management bodies of other Community bodies and institutions find themselves in their relations with their staff.
38. Against that background, the Court of First Instance, confining itself to considering the legality of the contested measures as it was bound to do, was right to see its role as the assessment of legality in the light of the principles applicable to all staff of other Community bodies and institutions. The Court of First Instance has, therefore, not disregarded the contractual nature of the position of the ECB staff members. Moreover, the Court of First Instance did not make an error of law in holding, in paragraph 59 of its judgment, that the alteration of the duties in question did not infringe an essential element of the employment contract.
39. In that light, contrary to Mr Pflugradt’s contentions, the Court of First Instance, in dismissing the arguments relied on in that connection, disregarded neither the ‘principle of institutional balance’ nor ‘the rules of evidence’, nor did it distort the arguments relied on by the applicant in that case.
40. The pleas relied upon relating to the contractual nature of the employment relationship between the ECB and its staff must, therefore, be rejected.
The pleas concerning the application of the principles governing the assignment of staff
41. Mr Pflugradt submits that, even while, mistakenly, in his view, applying the principles governing the assignment of staff to the staff of the ECB, in the light of the law on the Community civil service, the Court of First Instance breached those principles.
42. It should be recalled that the Court of Justice has held that the Community institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided such assignment is made in the interest of the service and conforms with the principle of assignment to an equivalent post (see Lux v Court of Auditors , cited above, paragraph 17; Case 19/87 Hecq v Commission [1988] ECR 1681, paragraph 6; and Ojha v Commission , cited above, paragraph 40).
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19 Finally, the wish to impose only those obligations which were necessary for the protection of insured and third parties also led the Council to exclude from the scope of the directive, and thus to exempt from the guarantees which it prescribes, certain mutual associations which, by virtue of their legal status, fulfil appropriate conditions as to security and financial guarantees (fourth recital in the preamble and Article 3 of the directive). To that same end, the Second Council Directive (88/357/EEC) of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC (Official Journal 1988 L 172, p. 1) grants to policy-holders who, by virtue of their status, their size or the nature of the risk to be insured, do not require special protection in the State in which the risk is situated, complete freedom to avail themselves of the widest possible insurance market, and guarantees adequate protection to other policy-holders (fifth recital in the preamble).
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42. In accordance with the Court’s settled case law, observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent (judgments in Sopropé , C‑349/07, EU:C:2008:746, paragraphs 33 and 36; M. , C‑277/11, EU:C:2012:744, paragraphs 81 and 82; and Kamino International Logistics , C‑129/13, EU:C:2014:2041, paragraph 28).
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33. In that context, it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, observe the principle of proportionality (see Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior and Publivía [1991] ECR I-4151, paragraph 16), which requires that the measures adopted be appropriate to secure the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it (see, in particular, Säger , paragraph 15; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 35; Corsten , paragraph 39; and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 33).
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33 Accordingly, the question whether the restrictions referred to in paragraph 29 of this judgment are justified must be examined simultaneously in the light of both Article 30 and Article 59 of the Treaty, in order to determine whether the national measure at issue in the main proceedings pursues an objective of public interest and whether it complies with the principle of proportionality, that is to say whether it is appropriate for securing the attainment of that objective and does not go beyond what is necessary in order to attain it (see, in particular, Case C-76/90 Säger [1991] ECR I-4221, paragraph 15; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 35; and Corsten, paragraph 39).
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28. En l’occurrence, le législateur italien a instauré, en application de l’article 52, paragraphe 1, de la directive 2004/18, un régime de certification effectué par des organismes privés, à savoir les SOA. Ces dernières sont des entreprises à but lucratif chargées de fournir des services de certification, l’obtention d’un certificat approprié étant une condition nécessaire de la participation, par les personnes intéressées, aux marchés de travaux publics dans des conditions régies par la réglementation nationale.
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41. As regards application of the principle of effectiveness, the Court has held that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see, to that effect, judgments in Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraph 27, and Târșia , C‑69/14, EU:C:2015:662, paragraphs 36 and 37 and the case-law cited).
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36. Regarding the principle of effectiveness, it should be borne in mind that every case in which the question arises as to whether a provision of national procedural legislation makes the exercise of rights conferred on individuals by the legal order of the European Union impossible in practice or excessively difficult must be analysed by reference to the role of the rules concerned in the proceedings as a whole, the way in which the proceedings are conducted and the special features of those rules, before the various national bodies (see, to that effect, judgment in Asturcom Telecomunicaciones , C‑40/08, EU:C:2009:615, paragraph 39 and the case-law cited).
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9. En effet, dans le cadre d’un recours introduit au titre de l’article 226 CE, la Cour n’est pas compétente pour ordonner à un État membre de prendre des mesures déterminées (voir arrêt du 14 avril 2005, Commission/Allemagne, C‑104/02, Rec. p. I‑2689, point 49). En l’espèce, une constatation selon laquelle la République hellénique a manqué aux obligations qui lui incombent en vertu de la directive 93/16 en ne retirant pas les diplômes délivrés sans que soient appliquées les prescriptions de cette directive aurait, en substance, les mêmes effets qu’une telle injonction.
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31
In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, those undertakings must be regarded as affected by that aid (judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 141).
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141. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra‑Community trade, the latter must be regarded as affected by that aid ( Italy v Commission , cited in paragraph 131 above, paragraph 115, and Unicredito Italiano , paragraph 56, and the case-law there cited).
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53. It follows that, accordingly, the national legislation at issue in the main proceedings is not appropriate to ensure the effective collection of income tax.
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33. In that regard, it is settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member State (see Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 33, and Case C‑434/09 McCarthy [2011] ECR I‑3375, paragraph 45).
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33. In this respect, it must be borne in mind that it is settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all relevant respects within a single Member State (see, inter alia, with regard to freedom of establishment and freedom of movement for workers, respectively, Case 20/87 Gauchard [1987] ECR 4879, paragraphs 12 and 13, and Case C‑18/95 Terhoeve [1999] ECR I‑345, paragraph 26, and the decisions there cited). The same holds good in respect of the provisions of Regulation No 1408/71 (see, to that effect, Case C‑153/91 Petit [1992] ECR I‑4973, paragraph 10, and Joined Cases C‑95/99 to C‑98/99 and C‑180/99 Khalil and Others [2001] ECR I‑7413, paragraph 70).
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44. Such a pilot is in a comparable situation to that of a younger pilot performing the same activity for the benefit of the same airline company and/or falling under the same collective agreement. The first pilot whose employment contract terminates automatically when he attains 60 years of age is treated in a less favourable manner, on grounds of his age, than the second.
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41. The essential characteristic of a waste recovery operation, such as is apparent from Article 3(1)(b) of Directive 75/442 and from the fourth recital to that directive, is that its principal objective is that the waste can serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources (see, inter alia, ASA , paragraph 69; Case C‑458/00 Commission v Luxembourg [2003] ECR I‑1553, paragraph 36; and Case C‑103/02 Commission v Italy [2004] ECR I-9127, paragraph 62).
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62. The Court has held, however, that the hazardous or non-hazardous nature of the waste is not, of itself, a relevant criterion for assessing whether a waste treatment operation must be classified as ‘recovery’ within the meaning of Article 1(f) of Directive 75/442. The essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources (Case C-6/00 ASA [2002] ECR I-1961, paragraphs 68 and 69).
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64 On the other hand, the mere fact that there are certain differences of form or content cannot justify the keeping of two sets of documents, one of which conforms to the rules of the Member State of establishment and the other to those of the host Member State, if the information provided, as a whole, by the documents required under the rules of the Member State of establishment is adequate to enable the controls needed in the host Member State to be carried out.
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34. The third paragraph of Article 249 EC expressly provides that Member States may choose the form and methods for implementing directives which best ensures the result to be achieved by the directives. It follows from that provision that the implementation in domestic law of a directive does not necessarily require legislative action in each Member State. Thus, the Court has repeatedly held that it is not always necessary formally to enact the requirements of a directive in a specific express legal provision, since the general legal context may be sufficient for implementation of a directive, depending on its content. In particular, the existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures provided, however, that those principles actually ensure the full application of the directive by the national authorities and that, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts (see, inter alia, Case 29/84 Commission v Germany [1985] ECR 1661, paragraphs 22 and 23; Case C‑217/97 Commission v Germany [1999] ECR I‑5087, paragraphs 31 and 32; and Case C‑233/00 Commission v France , paragraph 76).
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31 ON THAT POINT THE COURT ACCEPTS THE COMMISSION ' S ARGUMENT THAT REFERENCE TO PRINCIPLES OF LAW WHICH ARE AS GENERAL AS THOSE RELIED ON BY THE GERMAN GOVERNMENT IS NOT SUFFICIENT TO ESTABLISH THAT NATIONAL LAW FULLY GUARANTEES COMPLIANCE WITH PROVISIONS OF DIRECTIVES WHICH ARE OF SUCH A PRECISE AND DETAILED NATURE .
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42. However, in respect of the tax legislation of his State of residence, the position of a partner receiving profits is not necessarily altered merely by the fact that he receives those dividends from a company or partnership established in another Member State, which, in exercising its fiscal sovereignty, makes those profits subject to taxation amounting to less than 30% of the profit actually made (see, to that effect, Kerckhaert and Morres , paragraph 19).
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39. It is, admittedly, true that the Court has held in other cases that the second sentence of the first paragraph of Article 43 EC leaves traders free to choose the appropriate legal form in which to pursue their activities in another Member State and that freedom of choice must not be limited by discriminatory tax provisions (see, to that effect, Commission v France , paragraph 22; Oy AA , paragraph 40; and Case C‑253/03 CLT-UFA [2006] ECR I‑1831, paragraph 14).
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40. That conclusion cannot be called into question by the argument of the United Kingdom Government that the parent company could have attained the objective pursued by creating a branch in Finland rather than a subsidiary. The second sentence of the first paragraph of Article 43 EC expressly leaves traders free to choose the appropriate legal form in which to pursue their activities in another Member State and that freedom of choice must not be limited by discriminatory tax provisions ( Commission v France , paragraph 22, and Case C‑253/03 CLT-UFA [2006] ECR I‑1831, paragraph 14).
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46. Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation.
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26
In those circumstances, the meaning and scope of that concept must be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part (see, to that effect, judgment of 25 October 2012, Ketelä, C‑592/11, EU:C:2012:673, paragraph 51 and the case-law cited).
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51. Having regard to the foregoing, it must be recalled that according to settled case-law, the meaning and scope of terms for which European Union law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see to that effect, in particular, Case C-549/07 Wallentin-Hermann [2008] ECR I-11061, paragraph 17, and Ziolkowski , paragraph 34).
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56. À cet égard, il ressort d’une jurisprudence constante que la date de référence pour l’application de l’article 108, paragraphe 2, deuxième alinéa, TFUE est celle prévue dans la décision dont l’inexécution est contestée ou, le cas échéant, celle que la Commission a fixée par la suite (arrêt Commission/Italie, EU:C:2013:832, point 30 et jurisprudence citée).
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38. It should be pointed out, in that regard, that Article 30 EC cannot be understood as authorising measures other than the quantitative restrictions on imports and exports and the measures having equivalent effect envisaged by Articles 28 EC and 29 EC (see, to that effect Case C-302/00 Commission v France [2002] ECR I‑2055, paragraph 33). In the present case, the Commission has not alleged any infringement of Articles 28 EC or 29 EC.
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33 In this regard, it is sufficient to point out that Article 36 of the Treaty must be interpreted strictly and thus cannot be understood as authorising measures of a different nature from the quantitative restrictions on imports and exports and measures having equivalent effect laid down by Articles 30 and 34 of the EC Treaty (now, after amendment, Articles 28 EC and 29 EC) (see Case 29/72 Marimex [1972] ECR 1309, paragraphs 4 and 5, and Case 46/76 Bauhuis [1977] ECR 5, at paragraphs 12 to 14).
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26. The Council considers that it is clear, from an examination of its aim and content, that the sole purpose of the contested decision is to establish a financial cooperation measure with third countries, by means of a Community instrument.
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69. In those circumstances, on the same grounds as those given in paragraphs 88 to 107 of the judgment in Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), the answer to Question 4 is as follows:
– in circumstances such as those of the case before the referring court, EU law does not require judges who have been discriminated against to be retrospectively granted an amount equal to the difference between the pay actually received and that corresponding to the highest step in their grade;
– it is for the referring court to ascertain whether all the conditions laid down by the case-law of the Court are met for the Federal Republic of Germany to have incurred liability under EU law.
Question 5
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93. Referring to Terhoeve (C‑18/95, EU:C:1999:22, paragrap h 57) and Landtová (C‑399/09, EU:C:2011:415, paragraph 51), the referring court wonders, however, whether, given that discrimination contrary to EU law has been found, the only way of ensuring observance of the principle of equal treatment is, pending the adoption of measures reinstating equal treatment, to grant persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category.
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48. Il résulte de cette même jurisprudence que les exonérations visées à l’article 132 de la directive 2006/112 constituent des notions autonomes du droit de l’Union ayant pour objet d’éviter des divergences dans l’application du régime de la TVA d’un État membre à l’autre (voir, en ce sens, arrêts précités Horizon College, point 15 et jurisprudence citée, ainsi que Eulitz, point 25).
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32
Thus, it is essential that the contractor’s activity be principally devoted to the controlling authority or authorities; the nature of any other activity may only be marginal. In order to determine whether that is the case, the court having jurisdiction must take into account all the facts of the case, both qualitative and quantitative. In that regard, the relevant turnover is the turnover that that contractor achieves pursuant to the award decisions taken by that or those controlling authorities (see, to that effect, judgments of 11 May 2006, Carbotermo and Consorzio Alisei, C‑340/04, EU:C:2006:308, paragraphs 63 and 65, and of 17 July 2008, Commission v Italy, C‑371/05, not published, EU:C:2008:410, paragraph 31).
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65. As to the issue of whether it is necessary to take into account in that context only the turnover achieved with the supervisory authority or that achieved within its territory, it should be held that the decisive turnover is that which the undertaking in question achieves pursuant to decisions to award contracts taken by the supervisory authority, including the turnover achieved with users in the implementation of such decisions.
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33. According to settled case-law, a provision involves indirect discrimination against female workers when, although worded in neutral terms, it works to the disadvantage of a much higher percentage of women than men, unless that difference in treatment is justified by objective factors unrelated to any discrimination on grounds of sex (see, to that effect, Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 29).
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35. The appropriate legal basis on which an act must be adopted should be determined according to its content and main object (see, in particular, Case C-155/91 Commission v Council [1993] ECR I-939, paragraphs 19 to 21, and Netherlands v Parliament and Council , paragraph 27).
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20 That is the case here. The harmonization provided for in Article 1 of the directive has as its main object to ensure, with a view to protecting the environment, the effective management of waste in the Community, regardless of its origin, and has only ancillary effects on the conditions of competition and trade. As a result, it differs from Council Directive 89/428/EEC of 21 June 1989 on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry (OJ 1989 L 201, p. 56), which was the subject of the judgment in the titanium dioxide case, cited above, and is intended to approximate national rules concerning production conditions in a given industrial sector with the aim of eliminating distortions of competition in that sector.
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34 The acetyl content of starch is an indicator of the extent to which substitution has taken place: the higher the acetyl content, the more extensive the modification of the starch. Starch with a very low acetyl content may therefore be close to native starch.
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54. As follows from paragraphs 43 to 45 above, the concept of ‘redundancy’ in the first subparagraph of Article 1(1)(a) of Directive 98/59 directly determines the scope of the protection and the rights conferred on workers under that directive. That concept therefore has an immediate bearing on the costs which such protection entails. Accordingly, any national legislative provision or any interpretation of that concept to the effect that, in a situation such as that in the main proceedings, the termination of an employment contract is not a ‘redundancy’ for the purpose of Directive 98/59 would alter the scope of the directive and thus to deprive it of its full effect (see, to that effect, judgment in Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraph 47).
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47. Secondly, and contrary to the submissions of the French Government, Directive 98/59 cannot be interpreted as meaning that the methods for calculation of those thresholds, and therefore the thresholds themselves, are within the discretion of the Member States, since such an interpretation would allow the latter to alter the scope of that directive and thus to deprive it of its full effect.
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40. It is settled case-law that the rule of special jurisdiction laid down, by way of derogation from the principle of jurisdiction of the courts of the place of domicile of the defendant, in Article 5(3) of the Regulation is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings ( Zuid‑Chemie , paragraph 24 and the case-law cited).
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46 In that regard, it must be borne in mind that, given its role as guardian of the Treaty, it is for the Commission alone to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations (see Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 22).
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22 Given its role as guardian of the Treaty, the Commission alone is therefore competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. It may therefore ask the Court to find that, in not having achieved, in a specific case, the result intended by the directive, a Member State has failed to fulfil its obligations.
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56 However, measures taken by sports federations with a view to ensuring the proper functioning of competitions may not go beyond what is necessary for achieving the aim pursued (see Bosman, paragraph 104).
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23. It follows that a measure by which the public authorities grant certain undertakings favourable tax treatment, which, although not involving the transfer of State resources, places the recipients in a financial position more favourable than that of other taxpayers, amounts to State aid within the meaning of Article 107(1) TFEU. On the other hand, tax advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid within the meaning of Article 107 TFEU (judgment in P , C‑6/12, EU:C:2013:525, paragraph 18 and the case-law cited).
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18. Thus, a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU. On the other hand, advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid within the meaning of Article 107 TFEU (Joined Cases C‑106/09 P and C‑107/09 P Commission and Spain v Government of Gibraltar and United Kingdom [2011] ECR I‑0000, paragraphs 72 and 73 and the case-law cited).
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98. The Court of First Instance was wrong to rule, in paragraph 141 of the judgment under appeal, that it is possible to impute to a company all of the acts of a group even though that company has not been identified as the legal person at the head of that group with responsibility for coordinating the group's activities.
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61. In that regard, the Court has held that the aim of legal certainty requires the national court seised to be able readily to decide whether it has jurisdiction, without having to consider the substance of the case (see the judgment in Benincasa , C‑269/95, EU:C:1997:337, paragraph 27). As regards the application of that requirement in the context of the particular jurisdiction at issue in the main proceedings, the Court has, on the one hand, held that a court hearing a contractual dispute may examine, even of its own motion, the essential preconditions for its jurisdiction, having regard to conclusive and relevant evidence adduced by the party concerned establishing whether in fact the contract exists (judgment in Effer , 38/81, EU:C:1982:79, paragraph 7).
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7 IT FOLLOWS FROM THE PROVISIONS OF THE CONVENTION , AND IN PARTICULAR FROM THOSE IN SECTION 7 OF TITLE II , THAT , IN THE CASES PROVIDED FOR IN ARTICLE 5 ( 1 ) OF THE CONVENTION , THE NATIONAL COURT ' S JURISDICTION TO DETERMINE QUESTIONS RELATING TO A CONTRACT INCLUDES THE POWER TO CONSIDER THE EXISTENCE OF THE CONSTITUENT PARTS OF THE CONTRACT ITSELF , SINCE THAT IS INDISPENSABLE IN ORDER TO ENABLE THE NATIONAL COURT IN WHICH PROCEEDINGS ARE BROUGHT TO EXAMINE WHETHER IT HAS JURISDICTION UNDER THE CONVENTION . IF THAT WERE NOT THE CASE , ARTICLE 5 ( 1 ) OF THE CONVENTION WOULD BE IN DANGER OF BEING DEPRIVED OF ITS LEGAL EFFECT , SINCE IT WOULD BE ACCEPTED THAT , IN ORDER TO DEFEAT THE RULE CONTAINED IN THAT PROVISION IT IS SUFFICIENT FOR ONE OF THE PARTIES TO CLAIM THAT THE CONTRACT DOES NOT EXIST . ON THE CONTRARY , RESPECT FOR THE AIMS AND SPIRIT OF THE CONVENTION DEMANDS THAT THAT PROVISION SHOULD BE CONSTRUED AS MEANING THAT THE COURT CALLED UPON TO DECIDE A DISPUTE ARISING OUT OF A CONTRACT MAY EXAMINE , OF ITS OWN MOTION EVEN , THE ESSENTIAL PRECONDITIONS FOR ITS JURISDICTION , HAVING REGARD TO CONCLUSIVE AND RELEVANT EVIDENCE ADDUCED BY THE PARTY CONCERNED , ESTABLISHING THE EXISTENCE OR THE INEXISTENCE OF THE CONTRACT . THIS INTERPRETATION IS , MOREOVER , IN ACCORDANCE WITH THAT GIVEN IN THE JUDGMENT OF 14 DECEMBER 1977 IN CASE 73/77 ( SANDERS V VAN DER PUTTE ( 1977 ) ECR 2383 ) CONCERNING THE JURISDICTION OF THE COURTS OF THE STATE WHERE THE IMMOVABLE PROPERTY IS SITUATED IN MATTERS RELATING TO TENANCIES OF IMMOVABLE PROPERTY ( ARTICLE 16 ( 1 ) OF THE CONVENTION ). IN THAT CASE THE COURT HELD THAT SUCH JURISDICTION APPLIES EVEN IF THERE IS A DISPUTE AS TO THE ' ' EXISTENCE ' ' OF A LEASE .
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22. De surcroît, il découle de la jurisprudence que, lorsqu’une directive prévoit expressément que les dispositions de transposition de cette directive contiennent une référence à celle-ci ou sont accompagnées d’une telle référence lors de leur publication officielle, il est en tout état de cause nécessaire d’adopter un acte positif de transposition (voir arrêts du 18 décembre 1997, Commission/Espagne, C‑360/95, Rec. p. I‑7337, point 13, et Commission/Espagne, C‑361/95, Rec. p. I‑7351, point 15, ainsi que du 1 er octobre 2009, Commission/Espagne, C‑502/08, point 21).
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46
Moreover, since the competent national authorities have a wide discretion in assessing the facts, judicial review is limited, as far as that assessment is concerned, to the absence of manifest error. Judicial review must also relate to compliance with procedural guarantees, which is of fundamental importance. Those guarantees include the obligation for those authorities to examine carefully and impartially all the relevant elements of the situation in question (see, to that effect, judgments of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraphs 60 and 61, and of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 69), and also the obligation to give a statement of the reasons for their decision that is sufficient to enable the national court to ascertain, in connection with the right of challenge provided for in Article 18(4) of Directive 2004/114, whether the factual and legal elements on which the exercise of the power of assessment depends were present (see, by analogy, judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 69). On the latter point, it must be noted that, according to recital 14 of Directive 2004/114, a refusal of admission of a third country national for study purposes must be based on ‘duly justified grounds’.
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61. In exercising that discretion, the competent authority is nevertheless required, in such circumstances, to examine carefully and impartially all the relevant aspects of the individual case (see, by analogy, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, and Case C‑405/07 P Netherlands v Commission [2008] ECR I‑8301, paragraph 56).
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48. Where it is called upon to assess the legality of a decision of the Board of Appeal of OHIM, the Court of First Instance cannot be bound by an incorrect assessment of the facts by that Board, since that assessment is part of the findings whose legality is being disputed before the Court of First Instance.
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69. In that connection, it must be observed that Regulation No 44/2001 merely regulates the procedure for obtaining an order for the enforcement of foreign enforceable instruments and does not deal with execution itself, which continues to be governed by the domestic law of the court in which enforcement is sought (see Case 148/84 Deutsche Genossenschaftsbank [1985] ECR 1981, paragraph 18; Case 119/84 Capelloni and Aquilini [1985] ECR 3147, paragraph 16, and Hoffmann , paragraph 27), unless, for the purposes of the enforcement of a judgment, the application of the procedural rules of the Member State in which enforcement is sought may impair the effectiveness of the scheme laid down by the regulation as regards enforcement orders, by frustrating the principles laid down in that regard, whether expressly or by implication, by the regulation itself (see, to that effect, Capelloni and Aquilini , paragraph 21; Hoffmann , paragraph 29, and Case C‑365/88 Hagen [1990] ECR I-1845, paragraph 20).
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29 HOWEVER, THE APPLICATION, FOR THE PURPOSES OF THE EXECUTION OF A JUDGMENT, OF THE PROCEDURAL RULES OF THE STATE IN WHICH ENFORCEMENT IS SOUGHT MAY NOT IMPAIR THE EFFECTIVENESS OF THE SCHEME OF THE CONVENTION AS REGARDS ENFORCEMENT ORDERS .
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50. It is to be borne in mind that the Court has held that clause 8(3) of the Framework Agreement does not fulfil the conditions required in order to have direct effect. First, clause 8(3) relates only to the ‘implementation’ of that agreement by the Member States and/or the social partners, on whom it is incumbent to transpose the agreement into the domestic legal order, prohibiting them from justifying, in that transposition, a reduction in the general level of protection afforded to workers by the need to put the Framework Agreement into effect. Second, by simply prohibiting, in its own words, ‘reducing the general level of protection afforded to workers in the field of [that framework] agreement’, that clause implies that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term employment contracts is capable of falling within its ambit. However, individuals would not be able to infer from such a prohibition any right that would be sufficiently clear, precise and unconditional (see to that effect Angelidaki and Others , paragraphs 209 to 211, and Koukou , paragraph 128).
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33. Second, it should be noted that the Court has held that, in applying the principle of neutrality of VAT, a taxable person whose sole object is to prepare the economic activity of another taxable person and who has not effected any taxable transaction may exercise a right to deduct in relation to taxable transactions carried out by the other taxable person (see, to that effect, Case C‑137/02 Faxworld [2004] ECR I‑5547, paragraphs 41 and 42). That interpretation of the Sixth Directive concerned a situation where the VAT which the first taxable person wished to deduct related to supplies acquired by it for the purpose of carrying out taxable transactions planned by the second taxable person.
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42. In those precise circumstances, and in order to ensure the neutrality of taxation, it must be held that, where the Member State has exercised the options provided for in Articles 5(8) and 6(5) of the Sixth Directive, as a result of the fact that, according to those provisions, ‘the recipient shall be treated as the successor to the transferor’, a Vorgründungsgesellschaft, as the transferor, must be entitled to take account of the taxable transactions of the recipient, namely the Aktiengesellschaft, so as to be entitled to deduct the VAT paid on input services which have been procured for the purposes of the recipient’s taxable operations.
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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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58. Accordingly, the action must be dismissed as inadmissible in so far as it relates to that provision of the Directive (see, to that effect, Commission v Italy , cited above, paragraph 13).
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13 It follows from the foregoing considerations that, at the date of expiry of the period laid down in the Commission' s reasoned opinion of 27 March 1990, the infringement complained of no longer existed. Consequently, the action brought by the Commission must be dismissed as inadmissible.
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39. The Court has also held that, provided that the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62; Arnold André , paragraph 32; Swedish Match , paragraph 31; and Alliance for Natural Health and Others , paragraph 30).
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43 In this case, a comparison of the MGQs fixed for each variety of tobacco for the 1989, 1990 and 1991 harvests with the quantities of those varieties actually produced shows that the MGQs were not exceeded for the majority of the varieties at issue, so that it cannot in any event be argued that the system at issue was manifestly inappropriate for the objective pursued.
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14 However, with regard to judicial review of compliance with the conditions for implementing that prohibition, it must be stated that, in matters concerning the common agricultural policy, the Community legislature has a broad discretion which corresponds to the political responsibilities imposed upon it by Articles 40 and 43 of the Treaty ( see the judgment of 11 July 1989 in Case 265/87 Schraeder (( 1989 )) ECR 2237, paragraph 22 ). More specifically, where the Community legislature is obliged, in connection with the adoption of rules, to assess their future effects, which cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question .
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37. As the Advocate General observed in points 36 and 37 of her Opinion, application of the adjustment mechanism depends on the existence of a right to deduct based on Article 17 of the Sixth Directive.
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À cet égard, il convient de rappeler qu’il appartient au Tribunal de décider de la nécessité de faire usage de ce pouvoir
afin de compléter les éléments d’information dont il dispose, étant entendu que le caractère probant ou non des pièces de
la procédure relève de son appréciation souveraine des faits, laquelle, pour cette raison, échappe au contrôle de la Cour
dans le cadre du pourvoi, sauf en cas de dénaturation des éléments de preuve présentés au Tribunal, ou lorsque l’inexactitude
matérielle des constatations effectuées par ce dernier ressort des documents versés au dossier (voir, en ce sens, arrêts Der
Grüne Punkt – Duales System Deutschland/Commission, C‑385/07 P, EU:C:2009:456, point 163, et EMA/Commission, C‑100/14 P, EU:C:2015:382,
point 80).
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80. Cet argument doit être rejeté. En effet, le Tribunal est seul juge de la nécessité éventuelle de compléter les éléments d’information dont il dispose sur les affaires dont il est saisi. Le caractère probant ou non des pièces de la procédure relève de son appréciation souveraine des faits, laquelle échappe au contrôle de la Cour dans le cadre du pourvoi, sauf en cas de dénaturation des éléments de preuve présentés au Tribunal ou lorsque l’inexactitude matérielle des constatations effectuées par ce dernier ressort des documents versés au dossier (arrêts Der Grüne Punkt – Duales System Deutschland/Commission, C‑385/07 P, EU:C:2009:456, point 163, et Deltafina/Commission, C‑578/11 P, EU:C:2014:1742, point 67). Or, dans le cadre du présent pourvoi, l’EMA n’a allégué aucune dénaturation des éléments de preuve présentés au Tribunal ni aucune inexactitude matérielle des constatations effectuées par le Tribunal qui ressortirait des documents versés au dossier.
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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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49. With regard, thirdly, to the procedure for the grant of the concessions at issue in the main proceedings, it must first be recalled that although, as European Union law now stands, service concessions are not governed by any of the directives by which the European Union legislature has regulated public procurement, the public authorities which grant such concessions are none the less bound to comply with the fundamental rules of the Treaties, in particular Articles 43 EC and 49 EC, and with the consequent obligation of transparency (see, to that effect, Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraphs 60 and 61; Case C‑231/03 Coname [2005] ECR I‑7287, paragraphs 16 to 19; Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraphs 46 to 48; Case C‑91/08 Wall [2010] ECR I‑0000, paragraph 33; and Case C‑203/08 Sporting Exchange [2010] ECR I‑0000, paragraph 39).
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46. Notwithstanding the fact that public service concession contracts are, as Community law stands at present, excluded from the scope of Directive 92/50, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular (see, to that effect, Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraph 60, and Case C-231/03 Coname [2005] ECR I-0000, paragraph 16).
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36. Par ailleurs, les notes explicatives du SH relatives à la position 7318 relèvent que les boulons et les vis à métaux de tout genre sont compris dans cette position «quels que soient leur forme et leur usage». L’argument selon lequel le classement de l’article en cause dans la position 7318 de la NC serait exclu au motif qu’il n’est pas conçu pour tourner sur son propre axe ne saurait, par conséquent, être retenu.
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66. Such an interpretation cannot ensure compliance with the principle of legal certainty by virtue of which Community legislation must be certain and its application foreseeable by those subject to it (see, in particular, Isle of Wight Council and Others , paragraphs 47 and 48).
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48. The principle of legal certainty, which forms part of the Community legal order, must be observed both by the Community institutions and by the Member States when they exercise the powers conferred on them by Community directives (see Case C‑376/02 ‘ Goed Wonen ’ [2005] ECR I‑3445, paragraph 32).
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54. Having found that there was no similarity between the earlier mark and the mark applied for, the Court of First Instance correctly concluded that there was no likelihood of confusion, whatever the reputation of the earlier mark and regardless of the degree of identity or similarity of the goods or services concerned.
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41. That would be the case if the referring court found that the tax increase provided for by the amending Law of 2011 had the effect of restricting the operation of slot machines to casinos, to which that increase did not apply. Thus, it is claimed, that increase produced an effect comparable to that of prohibiting the operation of slot machines outside casinos, which settled case-law considers to be a restriction on the freedom to provide services (see, inter alia, judgments in Anomar and Others , C‑6/01, EU:C:2003:446, paragraph 75, and Commission v Greece , C‑65/05, EU:C:2006:673, paragraph 53).
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75. Accordingly, the answer to the 6th, 7th, 9th and 10th questions must be that national legislation, such as the Portuguese legislation, which authorises the operation and playing of games of chance or gambling solely in casinos in permanent or temporary gaming areas created by decree-law and which is applicable without distinction to its own nationals and nationals of other Member States constitutes a barrier to the freedom to provide services. However, Articles 49 EC et seq. do not preclude such national legislation, in view of the concerns of social policy and the prevention of fraud which justify it.
Question 8
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30. In accordance with the provisions of Chapter II of Directive 95/46, entitled ‘General rules on the lawfulness of the processing of personal data’, subject to the exceptions permitted under Article 13 of that directive, 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 (judgments in Österreichischer Rundfunk and Others , C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraph 65; Huber , C‑524/06, EU:C:2008:724, paragraph 48; and ASNEF and FECEMD , C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 26).
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48 The Court has likewise recognised, as regards the objective of maintaining a balanced medical and hospital service open to all, that even if that objective is intrinsically linked to the method of financing the social security system, it may also fall within the derogations on grounds of public health under Article 56 of the EC Treaty (now, after amendment, Article 46 EC) in so far as it contributes to the attainment of a high level of health protection (Kohll, paragraph 50).
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50 As to the objective of maintaining a balanced medical and hospital service open to all, that objective, although intrinsically linked to the method of financing the social security system, may also fall within the derogations on grounds of public health under Article 56 of the Treaty, in so far as it contributes to the attainment of a high level of health protection.
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61. À cet égard, il convient de rappeler qu’il résulte des articles 256 TFUE, 58, premier alinéa, du statut de la Cour et 112, paragraphe 1, sous c), du règlement de procédure de cette dernière qu’un pourvoi doit indiquer de façon précise les éléments critiqués de la décision du Tribunal dont l’annulation est demandée ainsi que les arguments juridiques qui soutiennent de manière spécifique cette demande (voir, notamment, arrêts du 23 avril 2009, AEPI/Commission, C-425/07 P, Rec. p. I-3205, point 25, et du 9 juin 2011, Evropaïki Dynamiki/BCE, C‑401/09 P, non encore publié au Recueil, point 55).
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40
As regards, in particular, the conditions relating to obtaining the full deduction, the Court has held that a threshold of 10% indeed serves to exclude from the scope of the fiscal advantage shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking, but does not in itself make the deduction applicable only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities (judgment of 11 September 2014, Kronos International, C‑47/12, EU:C:2014:2200, paragraph 34 and 35). The Court considered that a holding of such a size does not necessarily imply that the owner of the holding exerts a definite influence over the decisions of the company in which it is a shareholder (see, to that effect, judgments of 3 October 2013, Itelcar, C‑282/12, EU:C:2013:629, paragraph 22, and of 11 September 2014, Kronos International, C‑47/12, EU:C:2014:2200, paragraph 35).
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35. However, contrary to the German Government’s submissions, such a threshold does not in itself make the exemption applicable only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities. The Court has already held that a holding of such a size does not necessarily mean that the holder exerts a definite influence on the decisions of the company of which it is a shareholder (see, to this effect, judgment in ITELCAR and Fazenda Pública , C‑282/12, EU:C:2013:629, paragraph 22).
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32. In those circumstances, ‘prejudice’ within the meaning of Article 1(2) of Regulation No 2988/95 occurs on the date that the definitive decision is made to grant the advantage at issue, in the present case the export refunds. It is from that time that a prejudice is in fact caused to the budget of the European Union. That prejudice could not be considered to exist before the date on which the advantage was definitively granted unless it were accepted that the limitation period for recovering an advantage is capable of running already from a time at which the advantage has not yet been granted.
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43. Dans de telles circonstances, c’est en effet aux autorités nationales qu’il appartient au premier chef de procéder aux vérifications nécessaires sur place, dans un esprit de coopération loyale, conformément au devoir de tout État membre, rappelé au point 39 du présent arrêt, de faciliter la mission générale de la Commission (arrêt Commission/Italie, C‑135/05, EU:C:2007:250, point 31 et jurisprudence citée).
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31. In such circumstances, it is indeed primarily for the national authorities to conduct the necessary on-the-spot investigations, in a spirit of genuine cooperation and mindful of each Member State’s duty, recalled in paragraph 27 of the present judgment, to facilitate the general task of the Commission ( Commission v Ireland , paragraph 45 and the case-law cited).
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16 LIABILITY IN TORT , DELICT OR QUASI-DELICT CAN ONLY ARISE PROVIDED THAT A CAUSAL CONNEXION CAN BE ESTABLISHED BETWEEN THE DAMAGE AND THE EVENT IN WHICH THAT DAMAGE ORIGINATES .
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115. Rules which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned ( Commission v Denmark , paragraph 35; Commission v Portugal , paragraph 16; and Commission v Sweden , paragraph 18).
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18. Rules which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (see Case C-209/01 Schilling and Fleck-Schilling [2003] ECR I-13389, paragraph 25, and Commission v Denmark , paragraph 35).
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54. It must also be pointed out that Article 7(3) of that directive provides expressly that account is to be taken, in deciding whether information has been omitted, of the limitations of space and time of the medium of communication used and of the measures taken by the trader to make that information available to consumers by other means.
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42 According to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, where the factual and legal situations are often complex (see, in particular, Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraphs 6 and 7; Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraphs 69 and 70; Case C-341/95 Bettati [1998] ECR I-4355, paragraphs 67 and 68; Case C-67/96 Albany [1999] ECR I-5751, paragraph 39; and Joined Cases C-115/97, C-116/97 and C-117/97 Brentjens' [1999] ECR I-6025, paragraph 38).
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68 As the Court held in Telemarsicabruzzo and in Banchero, cited above (paragraphs 7 and 5 respectively), those requirements are of particular importance in certain areas, such as that of competition, which are characterised by complex factual and legal situations.
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17 In the perspective of a single market and in order to permit the realization of its objectives, that freedom likewise precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State.
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46. However, in paragraphs 30 and 31 of Medion , the Court held that, beyond the usual case where the average consumer perceives a mark as a whole, it is quite possible that in a particular case an earlier mark used by a third party in a composite sign including the name of the company of the third party still has an independent distinctive role in the composite sign, without necessarily constituting the dominant element. In such a case, the overall impression produced by the composite sign may lead the public to believe that the goods or services in question come, at the very least, from companies which are linked economically, in which case the likelihood of confusion must be held to be established.
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31. In such a case the overall impression produced by the composite sign may lead the public to believe that the goods or services at issue derive, at the very least, from companies which are linked economically, in which case the likelihood of confusion must be held to be established.
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32 It is clear from the wording of Article 4(2)(b) of Directive 69/335 that, when the Community legislature intended to limit the scope of a provision of that directive specifying the chargeable event for capital duty to transactions carried out by members of the capital company receiving the contributions, it did so clearly by referring to members expressly.
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17 Mrs Johnson appealed to the Court of Appeal, where argument centred on whether the judgment of the Court of Justice in Case C-208/90 Emmott v Minister for Social Welfare and Attorney General [1991] ECR I-4269 constituted a precedent for the present case and whether it entitled Mrs Johnson to receive benefits from 22 December 1984, when the period for transposing Directive 79/7 expired.
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23 It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual' s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
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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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53. In that regard, it should be borne in mind that, in order to assess whether the penalty in question is consistent with the principle of proportionality, account must be taken inter alia of the nature and the degree of seriousness of the infringement which the penalty seeks to sanction and of the means of establishing the amount of the penalty (see, inter alia, judgment in Rodopi-M 91 , C‑259/12, EU:C:2013:414, paragraph 38 and the case-law cited). The Member States are thus required to comply with the principle of proportionality also as regards the assessment of the factors which may be taken into account in the fixing of a fine (judgment in Urbán , C‑210/10, EU:C:2012:64, paragraph 54).
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54. It is, however, necessary to point out, in that respect, that Member States are required to comply with the principle of proportionality not only as regards the determination of factors constituting an infringement and the determination of the rules concerning the severity of fines, but also as regards the assessment of the factors which may be taken into account in the fixing of a fine.
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39 Persons not resident in that province therefore have little chance of acquiring the Certificate and it will be difficult, or even impossible, for them to gain access to the employment in question.
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21. It should be noted at the outset that, according to well-established case‑law, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (see, inter alia, Joined Cases C-397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 37; Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 29; Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-0000, paragraph 40; and Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I-0000, paragraph 25).
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29. In that regard, it must be borne in mind that, according to settled case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 37 and the case-law cited).
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10 IT EMERGES FROM THE ORDER MAKING THE REFERENCE THAT THE ONLY PROVISION OF THE DIRECTIVE WHICH IS RELEVANT IS THAT CONTAINED IN ARTICLE 3 ( 1 ) WHICH PROVIDES THAT " MEASURES TAKEN ON GROUNDS OF PUBLIC POLICY OR PUBLIC SECURITY SHALL BE BASED EXCLUSIVELY ON THE PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED " .
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62. Furthermore, the question whether a statement of reasons satisfies the requirements must be assessed with reference not only to the wording of the measure but also to its context and to the whole body of legal rules governing the matter in question. If the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution (see, in particular, Case C-100/99 Italy v Council and Commission [2001] ECR I-5217, paragraph 64, and, to that effect, Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council [2004] ECR I-0000, paragraph 79).
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64 Furthermore, the question whether a statement of reasons satisfies the requirements must be assessed with reference not only to the wording of the impugned measure but also to its context and to the whole body of legal rules governing the matter in question. Consequently, if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution (Case C-122/94 Commission v Council [1996] ECR I-881, paragraph 29).
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37. Accordingly, the Member States must exercise their discretion in such a way as to ensure that deduction is made only for that part of the VAT proportional to the amount relating to transactions giving rise to the right to deduct. They must therefore ensure that the calculation of the proportion of economic activities to non-economic activities objectively reflects the part of the input expenditure actually to be attributed, respectively, to those two types of activity.
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18 Moreover, in this case the Netherlands Government does not claim that the Commission failed to give it the information necessary to prepare its defence, which would be a matter affecting the proper conduct of proceedings for failure of a State to fulfil its obligations (see, in particular, Case 274/83 Commission v Italy [1985] ECR 1077, paragraphs 19 and 20).
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20 AS THE COURT HELD IN ITS JUDGMENT OF 11 JULY 1984 ( CASE 51/83 COMMISSION V ITALY ( 1984 ) ECR 2793 ) THE OPPORTUNITY FOR THE MEMBER STATE CONCERNED TO SUBMIT ITS OBSERVATIONS CONSTITUTES AN ESSENTIAL GUARANTEE REQUIRED BY THE TREATY AND , EVEN IF THE MEMBER STATE DOES NOT CONSIDER IT NECESSARY TO AVAIL ITSELF THEREOF , OBSERVANCE OF THAT GUARANTEE IS AN ESSENTIAL FORMAL REQUIREMENT OF THE PROCEDURE UNDER ARTICLE 169 .
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43 The Austrian Government points out that the introduction of the energy taxes and their rebate was not adopted as an isolated measure but in the context of the Strukturanpassungsgesetz of 1996, which provides for an overall package of measures intended to consolidate the budget. That package, composed of general socially balanced measures affecting all socio-professional groups, should be considered as a whole.
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29 The Greek Government cites the objective of maintaining a stock of petroleum products on Greek territory for reasons of public security. It is true that the maintenance on national territory of a stock of petroleum products allowing continuity of supplies to be guaranteed constitutes a public security objective within the meaning of Article 36 of the Treaty (see Case 72/83 Campus Oil and Others [1984] ECR 2727, paragraph 35).
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35 IT IS TRUE THAT , AS THE COURT HAS HELD ON A NUMBER OF OCCASIONS , MOST RECENTLY IN ITS JUDGMENT OF 9 JUNE 1982 ( CASE 95/81 COMMISSION V ITALY ( 1982 ) ECR 2187 ), ARTICLE 36 REFERS TO MATTERS OF A NON-ECONOMIC NATURE . A MEMBER STATE CANNOT BE ALLOWED TO AVOID THE EFFECTS OF MEASURES PROVIDED FOR IN THE TREATY BY PLEADING THE ECONOMIC DIFFICULTIES CAUSED BY THE ELIMINATION OF BARRIERS TO INTRA-COMMUNITY TRADE . HOWEVER , IN THE LIGHT OF THE SERIOUSNESS OF THE CONSEQUENCES THAT AN INTERRUPTION IN SUPPLIES OF PETROLEUM PRODUCTS MAY HAVE FOR A COUNTRY ' S EXISTENCE , THE AIM OF ENSURING A MINIMUM SUPPLY OF PETROLEUM PRODUCTS AT ALL TIMES IS TO BE REGARDED AS TRANSCENDING PURELY ECONOMIC CONSIDERATIONS AND THUS AS CAPABLE OF CONSTITUTING AN OBJECTIVE COVERED BY THE CONCEPT OF PUBLIC SECURITY .
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39. An argument based on the need to preserve the coherence of the Austrian tax system cannot therefore be accepted.
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17 The Court has consistently held that the incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty (see, in particular, Case C-197/96 Commission v France [1997] ECR I-1489, paragraph 14).
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14 The Court has consistently held that the incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty (see Case C-334/94 Commission v France [1996] ECR I-1307, paragraph 30).
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36. Par ailleurs, les notes explicatives du SH relatives à la position 7318 relèvent que les boulons et les vis à métaux de tout genre sont compris dans cette position «quels que soient leur forme et leur usage». L’argument selon lequel le classement de l’article en cause dans la position 7318 de la NC serait exclu au motif qu’il n’est pas conçu pour tourner sur son propre axe ne saurait, par conséquent, être retenu.
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55. The Court has held that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. The Court has further held that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular to which its interpretation gives rise and the risk of divergences in judicial decisions within the EU (judgment in Cilfit and Others , 283/81, EU:C:1982:335, paragraph 21).
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21 IN THE LIGHT OF ALL THOSE CONSIDERATIONS , THE ANSWER TO THE QUESTION SUBMITTED BY THE CORTE SUPREMA DI CASSAZIONE MUST BE THAT THE THIRD PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY IS TO BE INTERPRETED AS MEANING THAT A COURT OR TRIBUNAL AGAINST WHOSE DECISIONS THERE IS NO JUDICIAL REMEDY UNDER NATIONAL LAW IS REQUIRED , WHERE A QUESTION OF COMMUNITY LAW IS RAISED BEFORE IT , TO COMPLY WITH ITS OBLIGATION TO BRING THE MATTER BEFORE THE COURT OF JUSTICE , UNLESS IT HAS ESTABLISHED THAT THE QUESTION RAISED IS IRRELEVANT OR THAT THE COMMUNITY PROVISION IN QUESTION HAS ALREADY BEEN INTERPRETED BY THE COURT OR THAT THE CORRECT APPLICATION OF COMMUNITY LAW IS SO OBVIOUS AS TO LEAVE NO SCOPE FOR ANY REASONABLE DOUBT . THE EXISTENCE OF SUCH A POSSIBILITY MUST BE ASSESSED IN THE LIGHT OF THE SPECIFIC CHARACTERISTICS OF COMMUNITY LAW , THE PARTICULAR DIFFICULTIES TO WHICH ITS INTERPRETATION GIVES RISE AND THE RISK OF DIVERGENCES IN JUDICIAL DECISIONS WITHIN THE COMMUNITY .
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14. En second lieu, ainsi qu’il résulte d’une jurisprudence constante, les mesures interdites par l’article 63, paragraphe 1, TFUE, en tant que restrictions aux mouvements de capitaux, comprennent celles qui sont de nature à dissuader les non‑résidents de faire des investissements dans un État membre ou à dissuader les résidents dudit État membre d’en faire dans d’autres États (voir, notamment, arrêt du 8 novembre 2012, Commission/Finlande, C‑342/10, non encore publié au Recueil, point 28 et jurisprudence citée).
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32. As the Court held in paragraph 49 of the judgment in Case C-114/01 AvestaPolarit Chrome [2003] ECR I-8725, the expression ‘other legislation’ in Article 2(1)(b) of Directive 75/442 may also refer to national legislation.
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49. That conclusion does not, however, exclude the possibility that the expression " other legislation" in Article 2(1)(b) of Directive 75/442 may also refer, under certain conditions (see paragraphs 52 and 58 to 60 below), to national legislation. It should be observed on this point that where the Community legislature intended to refer in this field to a particular type of legislation, Community or national, it did so in precise terms. Thus Article 2(2) of Directive 75/442 refers precisely to directives, Article 2(1) of that directive, in the original version prior to the amendments made by Directive 91/156, referred to specific rules adopted by the Member States, and Article 2(2)(f) of that version referred to specific Community rules.
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41
It should be noted that, in the context of a reference for a preliminary ruling, the Court is only empowered to rule on the interpretation or validity of EU law in the light of the factual and legal situation as described by the referring court, in order to provide that court with such guidance as will assist it in resolving the dispute before it (see, to that effect, judgment of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 35).
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27. The Court has consistently held that Article 1(2) of Directive 91/439 provides for mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes on Member States a clear and precise obligation, which leaves no room for discretion as to the measures to be adopted in order to comply with it (see, to that effect, Case C‑230/97 Awoyemi [1998] ECR I‑6781, paragraphs 41 and 42; Kapper , paragraph 45; Wiedemann and Funk , paragraph 50; and Zerche and Others , paragraph 47).
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50. The Court has consistently held that Article 1(2) of Directive 91/439 provides for mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes on Member States a clear and precise obligation, which leaves no room for discretion as to the measures to be adopted in order to comply with it (judgments in Case C‑230/97 Awoyemi [1998] ECR I‑6781, paragraphs 41 and 43; Case C-246/00 Commission v Netherlands [2003] ECR I‑7485, paragraphs 60 and 61; and Kapper , paragraph 45; orders of 6 April 2006 in Case C‑227/05 Halbritter [2006] ECR I‑0049, and of 28 September 2006 in Case C‑340/05 Kremer [2006] ECR I-0098).
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39. À cet égard, il convient de rappeler que la nécessité de parvenir à une interprétation du droit de l’Union qui soit utile au juge national implique que celui-ci définisse le cadre factuel et réglementaire dans lequel s’insèrent les questions qu’il pose ou que, à tout le moins, il explique les hypothèses factuelles sur lesquelles ces questions sont fondées. Ces exigences valent tout particulièrement dans le domaine de la concurrence, qui est caractérisé par des situations de fait et de droit complexes (voir, notamment, arrêt du 11 mars 2010, Attanasio Group, C‑384/08, Rec. p. I‑2055, point 32 et jurisprudence citée).
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78. In this respect, the Court has had occasion to rule that the exception in the first paragraph of Article 45 EC does not extend to certain activities that are auxiliary or preparatory to the exercise of official authority (see, to that effect, Thijssen , paragraph 22; Commission v Spain , paragraph 38; Servizi Ausiliari Dottori Commercialisti , paragraph 47; Commission v Germany , paragraph 38, and Commission v Portugal , paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, Reyners , paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, Thijssen, paragraphs 21 and 22; Case C‑393/05 Commission v Austria , paragraphs 36 and 42; Commission v Germany , paragraphs 38 and 44; and Commission v Portugal , paragraphs 36 and 41), powers of constraint (see, to that effect, inter alia, Commission v Spain , paragraph 37) or powers of coercion (see, to that effect, Case C‑47/02 Anker and Others [2003] ECR I‑10447, paragraph 61, and Commission v Portugal , paragraph 44).
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47. It must be held that checking that the information given in the tax declaration is consistent with the documents annexed to it, even though it is in fact rarely questioned by the tax authorities, is not directly and specifically connected with the exercise of official authority but a measure intended to prepare for or facilitate the accomplishment of the tasks for which the tax authorities are responsible.
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25. It should also be stated that, in any event, according to settled case-law, it is solely for the national court to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C-439/08 VEBIC [2010] ECR I-12471, paragraph 41, and Case C-118/11 Eon Aset Menidjmunt [2012] ECR, paragraph 76 and the case-law cited).
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51. Consequently, even if that legislation has restrictive effects on the freedom of establishment, they are the unavoidable consequence of any restriction on the free movement of capital and, therefore, do not justify an independent examination of that legislation in the light of Article 52 of the Treaty (see, to that effect, Case C‑36/02 Omega [2004] ECR I-9609, paragraph 27; Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 33; Test Claimants in the Thin Cap Group Litigation , paragraph 34; and Fidium Finanz , paragraph 48).
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33. If, as submitted by the applicants in the main proceedings and Ireland, that legislation has restrictive effects on the free movement of services and the free movement of capital, such effects are an unavoidable consequence of any restriction on freedom of establishment and do not justify, in any event, an independent examination of that legislation in the light of Articles 49 EC and 56 EC (see, to that effect, Case C-36/02 Omega [2004] ECR I‑9609, paragraph 27).
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20 The authorities cited above presuppose that the transfer relates to a stable economic entity whose activity is not limited to performing one specific works contract.
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38. It follows that a worker who is a national of a Member State, such as Mr My, may not be refused the rights and social advantages which Article 39 EC and Regulation No 1612/68 afford him (see Case 152/82 Forcheri [1983] ECR 2323, paragraph 9; Echternach and Moritz , paragraph 12; Schmid , paragraph 22; and Ferlini , paragraph 43).
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43 It follows that a worker who is a Member State national, such as Mr Ferlini, may not be refused the rights and social advantages which Article 48 of the Treaty and Regulation No 1612/68 afford him (see Case 152/82 Forcheri v Belgian State [1983] ECR 2323, paragraph 9; Echternach and Moritz, paragraph 12; and Schmid, paragraph 22).
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59. En cas de violation de la réglementation communautaire en matière de conservation et de contrôle de la pêche et, plus précisément, de la réglementation relative aux restrictions à l’utilisation des filets maillants dérivants, les autorités compétentes d’un État membre étaient tenues d’intenter une action administrative ou pénale contre les responsables, conformément à l’article 1 er , paragraphe 2, du règlement n° 2241/87. Une obligation analogue incombe aux États membres depuis le 1 er janvier 1994, en vertu de l’article 31, paragraphe 1, du règlement n° 2847/93 (voir arrêt du 25 avril 2002, Commission/France, C‑418/00 et C‑419/00, Rec. p. I‑3969, point 62).
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34
It follows that, subject to the exceptions and limitations laid down exhaustively in Article 5 of Directive 2001/29, any use of a work carried out by a third party without such prior consent must be regarded as infringing the copyright in that work (see, to that effect, judgment of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraphs 24 and 25).
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24. As a preliminary point, it should be noted that, in the case in the main proceedings, it is common ground that the protected subject-matter was made available to users of a website without the consent of the rightholders mentioned in Article 3(2) of Directive 2001/29.
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81
Further, the indication of the legal basis is of particular significance in order to preserve the prerogatives of the EU institutions concerned by the procedure for the adoption of a measure (judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraph 50).
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18 It is appropriate, first, briefly to recall the factual and legal circumstances of the Roenfeldt case, relating to the application of the provisions of a social security convention between the Kingdom of Denmark and the Federal Republic of Germany, which for the most part were similar to those at issue in this case.
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15 Accordingly, the question is whether, and how, Community law requires account to be taken of insurance periods completed in Denmark, and of contributions paid there before Regulation No 1408/71 entered into force in that country following its accession to the Communities, for the purpose of granting a retirement pension in some other Member State.
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24. According to the case‑law of the Court of Justice, activities which fall within the exercise of public powers are not of an economic nature justifying the application of the Treaty rules of competition (see, to that effect, Case C‑364/92 SAT Fluggesellschaft [1994] ECR I‑43, paragraphs 30 and 31) .
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30
Second, it must be noted that, pursuant to the settled case-law of the Court, the fundamental principle of VAT neutrality requires that deduction of input VAT due or paid be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (see judgment of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 58 and the case-law cited).
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58. Furthermore, the Court has already held that the fundamental principle of VAT neutrality requires that deduction of input VAT be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (see, to that effect, judgments in Ecotrade , C‑95/07 and C‑96/07, EU:C:2008:267 paragraph 63; in Uszodaépítő , C‑392/09, EU:C:2010:569, paragraph 39; in Nidera Handelscompagnie , C‑385/09, EU:C:2010:627, paragraphs 42 and 43; and in Idexx Laboratories Italia , C‑590/13, EU:C:2014:2429, paragraph 38).
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203 By that reasoning, it rejected the argument that the duration of the judicial proceedings leading to the annulment of the Commission's first decision could be attributed to that institution simply because the illegality leading to the annulment was itself attributable to it.
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43. Such manifest infringement is to be assessed, inter alia, in the light of a number of criteria, such as the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, and the non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC; it is in any event presumed where the decision involved is made in manifest disregard of the case-law of the Court on the subject ( Köbler , paragraphs 53 to 56). is
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56. In any event, an infringement of Community law will be sufficiently serious where the decision concerned was made in manifest breach of the case-law of the Court in the matter (see to that effect Brasserie du Pêcheur and Factortame, cited above, paragraph 57).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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86. According to the judgment in Case 374/87 Orkem v Commission [1989] ECR 3283, paragraphs 34 and 35, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it but may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.
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34 Accordingly, whilst the Commission is entitled, in order to preserve the useful effect of Article 11(2 ) and ( 5 ) of Regulation No 17, to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct, it may not, by means of a decision calling for information, undermine the rights of defence of the undertaking concerned .
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35
In accordance with the principle of fiscal neutrality, the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities (judgment of 12 February 2009, Vereniging Noordelijke Land- en Tuinbouw Organisatie, C‑515/07, EU:C:2009:88, paragraph 27).
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68. It is settled case-law relating to Article 235 EC and transposable to Article 15 CS that the statement of reasons required by that provision must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review. 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 235 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, in particular, Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86; Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63; and Case C-310/99 Italy v Commission [2002] ECR I-2289, paragraph 48).
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86 The Court has consistently held that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to carry out its review. It is also clear from the relevant case-law that it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraphs 15 and 16, and Case C-466/93 Atlanta Fruchthandelsgesellschaft and Others v Bundesamt fuer Ernaehrung und Forstwirtschaft [1995] ECR I-0000, paragraph 16).
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20. À cet égard, il résulte d’une jurisprudence constante de la Cour que la notion de «livraison de biens» visée aux articles 5, paragraphe 1, de la sixième directive et 14, paragraphe 1, de la directive 2006/112 ne se réfère pas au transfert de propriété dans les formes prévues par le droit national applicable, mais qu’elle inclut toute opération de transfert d’un bien corporel par une partie qui habilite l’autre partie à en disposer en fait comme si elle était le propriétaire de ce bien (voir arrêts du 14 juillet 2005, British American Tobacco et Newman Shipping, C‑435/03, Rec. p. I‑7077, point 35; Optigen e.a., précité, point 39; Halifax e.a., précité, point 51; du 3 juin 2010, De Fruytier, C‑237/09, Rec. p. I‑4985, point 24, et du 18 juillet 2013, Evita-K, C‑78/12, point 33).
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25 Furthermore, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with `pregnancy and maternity', Article 2(3) of the Directive recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see, in particular, Case 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 25, Case C-421/92 Habermann-Beltermann [1994] ECR I-1657, paragraph 21, and Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraph 20).
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21 In the first place, so far as concerns the purpose of Article 2(3) of the directive, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with "pregnancy and maternity", that article recognizes the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman' s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see the judgment in Case 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 25).
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Il convient également de relever que, selon la jurisprudence de la Cour, s’il incombe à l’autorité qui allègue une violation des règles de concurrence d’en apporter la preuve, il appartient à l’entreprise soulevant un moyen de défense contre la constatation d’une infraction à ces règles d’apporter la preuve que les conditions d’application de la règle dont est déduit ce moyen de défense sont remplies, de sorte que ladite autorité devra alors recourir à d’autres éléments de preuve (arrêt du 17 juin 2010, Lafarge/Commission, C‑413/08 P, EU:C:2010:346, point 29).
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41. Moreover, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of the aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see Altmark Trans and Regierungspräsidium Magdeburg , paragraph 81; Joined Cases C‑34/01 to C‑38/01 Enirisorse [2003] ECR I‑14243, paragraph 28; and Heiser , cited above, paragraph 32).
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81. Finally, according to the Court's case-law, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see Tubemeuse , paragraph 43, and Spain v Commission , paragraph 42).
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74. As follows from paragraphs 47 to 52 of the present judgment, a scheme for supplementary reimbursement of healthcare costs such as that managed by AG2R is characterised by a high degree of solidarity. In addition, Addendum No 83 places particular constraints on AG2R, notably constraints of a financial nature, with a view to ensuring the continuity of cover granted to the persons insured.
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19. With regard to any medicinal products not covered by Directive 81/851 to which Articles 30 and 36 of the Treaty should be applied, it should be recalled that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the particular facts of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (see, in particular, Case C-472/93 Spano and Others v Fiat Geotech and Fiat Hitachi Excavators [1995] ECR I-0000, paragraph 15), and that the parties cannot alter the wording of those questions (Case 5/72 Grassi v Italian Finance Administration [1972] ECR 443, paragraph 4).
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4 ACCORDING TO ARTICLE 177 OF THE TREATY IT IS FOR THE NATIONAL COURT AND NOT THE PARTIES TO THE MAIN ACTION TO BRING THE MATTER BEFORE THE COURT OF JUSTICE . SINCE THE POWER TO FORMULATE THE QUESTIONS TO BE REFERRED IS VESTED IN THE NATIONAL COURT ALONE THE PARTIES CANNOT ALTER THE WORDING OF THOSE QUESTIONS . IN THE PRESENT CASE, IT IS CLEAR FROM THE TEXT OF THE JUDGMENT IN WHICH THE COTE D' APPELLO, BRESCIA, DECIDED TO MAKE THE REFERENCE TO THE COURT OF JUSTICE THAT THE NATIONAL COURT HAS ITSELF REACHED A DECISION ON THE QUESTIONS RELATING TO THE PERIOD AFTER 30 JUNE 1967 . THERE IS THEREFORE NO REASON TO EXAMINE THE PROBLEMS RELATING TO THAT PERIOD .
II - THE QUESTIONS REFERRED TO THE COURT
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Or, une information qui s’avère incomplète, ambiguë ou trompeuse et qui peut induire le consommateur en erreur ne saurait être protégée au titre de la liberté d’expression et d’information de l’entrepreneur et de la liberté d’entreprendre de celui–ci (voir, en ce sens, arrêt du 17 décembre 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, points 74 à 78).
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48 In that connection, when the implementation by the Council of the agricultural policy in the sugar sector involves the need to evaluate a complex economic situation, the discretion which it has does not apply exclusively to the nature and scope of the measures to be taken but also to some extent to the finding of the basic facts (see Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 25, and Case C-285/94 Italy v Commission [1997] ECR I-3519, paragraph 23).
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25 WHEN THE IMPLEMENTATION BY THE COUNCIL OF THE AGRICULTURAL POLICY OF THE COMMUNITY INVOLVES THE NEED TO EVALUATE A COMPLEX ECONOMIC SITUATION , THE DISCRETION WHICH IT HAS DOES NOT APPLY EXCLUSIVELY TO THE NATURE AND SCOPE OF THE MEASURES TO BE TAKEN BUT ALSO TO SOME EXTENT TO THE FINDING OF THE BASIC FACTS INASMUCH AS , IN PARTICULAR , IT IS OPEN TO THE COUNCIL TO RELY IF NECESSARY ON GENERAL FINDINGS . IN REVIEWING THE EXERCISE OF SUCH A POWER THE COURT MUST CONFINE ITSELF TO EXAMINING WHETHER IT CONTAINS A MANIFEST ERROR OR CONSTITUTES A MISUSE OF POWER OR WHETHER THE AUTHORITY IN QUESTION DID NOT CLEARLY EXCEED THE BOUNDS OF ITS DISCRETION .
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31. In the light of those factors, it must be held that, in circumstances such as those of the main proceedings, the Member State of residence cannot be deprived of the right to grant child benefit to those resident within its territory. While, under Article 13(2)(a) of Regulation No 1408/71, a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State, the fact remains that the purpose of that regulation is not to prevent the Member State of residence from granting, pursuant to its legislation, child benefit to that person.
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59. En cas de violation de la réglementation communautaire en matière de conservation et de contrôle de la pêche et, plus précisément, de la réglementation relative aux restrictions à l’utilisation des filets maillants dérivants, les autorités compétentes d’un État membre étaient tenues d’intenter une action administrative ou pénale contre les responsables, conformément à l’article 1 er , paragraphe 2, du règlement n° 2241/87. Une obligation analogue incombe aux États membres depuis le 1 er janvier 1994, en vertu de l’article 31, paragraphe 1, du règlement n° 2847/93 (voir arrêt du 25 avril 2002, Commission/France, C‑418/00 et C‑419/00, Rec. p. I‑3969, point 62).
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62 The competent authorities of a Member State are required, under Article 1(2) of Regulation No 2241/87, to take penal or administrative action against those responsible in cases of infringement of Community rules on the conservation and control of fishery resources. The same obligation is incumbent on the Member States, since 1 January 1994, under Article 31(1) of Regulation No 2847/93.
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25. Furthermore, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see Comunità montana della Valnerina v Commission , paragraph 105, and, inter alia, the orders in Martinez v Parliament , paragraph 40, and Front National and Others v Parliament and Council , paragraph 24).
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44. Article 17(2) EC attaches to that status the rights and duties laid down by the Treaty, including the right to rely on Article 12 EC in all situations falling within the scope ratione materiae of Union law (see Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraph 62, and Schempp , paragraph 17).
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62 Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae 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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35. In that regard, the Court has already held that, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights henceforth guaranteed by the Charter. Thus the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court (see, to that effect, Case C‑260/89 ERT EU:C:1991:254, paragraph 43).
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43 In particular, where a Member State relies on the combined provisions of Articles 56 and 66 in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 56 and 66 only if they are compatible with the fundamental rights the observance of which is ensured by the Court.
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46. The imposition of a penalty payment is not, therefore, justified.
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24. First, it should be borne in mind that, although Article 222 of the EC Treaty (now Article 295 EC) does not call into question the Member States ' right to establish a system for the acquisition of immovable property which lays down measures specific to transactions relating to agricultural and forestry plots, such a system remains subject to the fundamental rules of Community law, including those of non-discrimination, freedom of establishment and free movement of capital (see, to that effect, Case 182/83 Fearon [1984] ECR 3677, paragraph 7, and Konle , cited above, paragraphs 7 and 22). In particular, the Court has held that the scope of the national measures governing the acquisition of immovable property should be assessed in the light of those provisions of the Treaty which relate to the movement of capital (see, to that effect, Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch and Others [2002] ECR I-2157, paragraphs 28 to 31).
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29 First, as is apparent from Article 44(2)(e) EC, the right to acquire, use or dispose of immovable property on the territory of another Member State, which is the corollary of freedom of establishment (Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 22), generates capital movements when it is exercised.
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39. As regards the second criterion, it must be ascertained whether the purpose of the penalty imposed on the farmer is punitive.
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28
In that regard, it should be noted that, according to the Court’s case-law, the system of consumer protection established by Directive 93/13 involves recognition of the national court’s power to determine of its own motion whether a term is unfair (see, to that effect, judgments of 27 June 2000 in Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraphs 26, 28 and 29; of 21 November 2002 in Cofidis, C‑473/00, EU:C:2002:705, paragraphs 32 and 33, and of 26 October 2006 in Mostaza Claro, C‑168/05, EU:C:2006:675, paragraphs 27 and 28).
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26 The aim of Article 6 of the Directive, which requires Member States to lay down that unfair terms are not binding on the consumer, would not be achieved if the consumer were himself obliged to raise the unfair nature of such terms. In disputes where the amounts involved are often limited, the lawyers' fees may be higher than the amount at stake, which may deter the consumer from contesting the application of an unfair term. While it is the case that, in a number of Member States, procedural rules enable individuals to defend themselves in such proceedings, there is a real risk that the consumer, particularly because of ignorance of the law, will not challenge the term pleaded against him on the grounds that it is unfair. It follows that effective protection of the consumer may be attained only if the national court acknowledges that it has power to evaluate terms of this kind of its own motion.
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36. Thus, in order for VAT to become chargeable in such circumstances, all the relevant information concerning the chargeable event, namely, the future supply of goods or services, must already be known and therefore, in particular, the goods or services must be precisely identified at the time when the payment on account is made (to that effect, BUPA Hospitals and Goldsborough Developments , paragraph 48).
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86
Concerning the assessment of the excessive duration of the administrative procedure, it should be recalled that, although an infringement by the Commission of the principle that the procedure must be concluded within a reasonable time can justify the annulment of a decision taken by it following an administrative procedure based on Article 101 or 102 TFEU inasmuch as it also entails an infringement of the rights of defence of the undertaking concerned, such an infringement of the ‘reasonable time principle’, if established, cannot lead to a reduction of the fine imposed (see, inter alia, judgments of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 61, and of 9 June 2016, PROAS v Commission, C‑616/13 P, EU:C:2016:415, paragraph 74 and the case-law cited). In the present case, as follows from paragraph 69 of the present judgment, it is clear that, with its argument that the General Court’s assessment of the excessive duration of the administrative procedure was incorrect, the appellant is seeking solely a reduction of the fine imposed on it.
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74
As regards the first part of the present ground of appeal, by which the appellant criticises the General Court for having committed an error of law by finding that the administrative procedure had been conducted within a reasonable period, it should be noted that, although the infringement of the principle of observance of a reasonable period is capable of justifying the annulment of a decision taken following an administrative procedure based on Article 101 or 102 TFEU inasmuch as it also constitutes an infringement of the rights of defence of the undertaking concerned (see, to that effect, judgment of 21 September 2006 in Nederlandse Vereniging voor de Groothandel Federatieve op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraphs 42 and 43), the Commission’s infringement of a reasonable period for such an administrative procedure, if established, is not capable of leading to a reduction of the amount of the fine imposed (see, to that effect, judgment of 8 May 2014 in Bolloré v Commission, C‑414/12 P, EU:C:2014:301, paragraph 109).
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37. The fact that cooking wine is, as such, regarded as an edible preparation does not affect that assessment.
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26. Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under Community law (see, inter alia, Case C‑439/99 Commission v Italy [2002] ECR I‑305, paragraph 12, and Case C-29/04 Commission v Austria , paragraph 27).
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12 Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see, in particular, Case C-207/96 Commission v Italy [1997] ECR I-6869, paragraph 18).
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55. Incidentally, it must be added that, under the national legislation at issue in the main proceedings, an association may directly represent such a consumer in any proceedings, including enforcement proceedings, if mandated to do so by the latter.
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19. It should then be noted that, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. In any event, the national court is in a better position to do so (Joined Cases C-260/00 to C-263/00 Lohmann and Medi Bayreuth [2002] ECR I-10045, paragraph 26, and Proxxon , paragraph 23).
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26 It must be made clear at the outset that, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. In any event the national court is in a better position to do so.
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97 The same applies, even in the absence of any express provision authorising its institutions to negotiate with non-member countries, where the Community has achieved complete harmonisation in a given area, because the common rules thus adopted could be affected within the meaning of the AETR judgment if the Member States retained freedom to negotiate with non-member countries (Opinion 1/94, paragraph 96; Opinion 2/92, paragraph 33).
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32
The First Directive is part of a series of directives which came progressively to define the obligations of Member States concerning insurance against civil liability in respect of the use of vehicles. It is apparent from the preambles to that directive and Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17) that the aim of those directives is, first, to ensure the free movement of vehicles normally based in the territory of the European Union and of persons travelling in those vehicles and, second, to guarantee that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the European Union the accident occurred (see, to that effect, judgments of 9 June 2011, Ambrósio Lavrador and Olival Ferreira Bonifácio, C‑409/09, EU:C:2011:371, paragraph 23; of 23 October 2012, Marques Almeida, C‑300/10, EU:C:2012:656, paragraph 26; and of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 50).
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50. The First Directive is therefore part of a series of directives which came progressively to define the obligations of Member States concerning civil liability in respect of the use of vehicles. Although the Court has repeatedly held that it is apparent from the recitals in the preambles to the First and Second Directives that the aim of those directives is to ensure the free movement of vehicles normally based on European Union territory and of persons travelling in those vehicles, it has also repeatedly held that they also have the objective of guaranteeing that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the European Union the accident occurred (see, inter alia, to that effect Ruiz Bernáldez , C‑129/94, EU:C:1996:143, paragraph 13, and Csonka and Others , C‑409/11, EU:C:2013:512, paragraph 26 and the case-law cited).
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19IN CONTRAST TO THE PROVISIONS OF ARTICLES 117 AND 118 , WHICH ARE ESSENTIALLY IN THE NATURE OF A PROGRAMME , ARTICLE 119 , WHICH IS LIMITED TO THE QUESTION OF PAY DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS , CONSTITUTES A SPECIAL RULE , WHOSE APPLICATION IS LINKED TO PRECISE FACTORS .
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16. It should also be noted that the scope of the rules on freedom of movement for workers (and hence of Regulation No 1612/68) extends to all workers carrying on effective and genuine activities, with the exception of those whose activities are on such a small scale as to be regarded as purely marginal and ancillary (see, in particular, Case 53/81 Levin [1982] ECR 1035, paragraph 17).
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17 IT SHOULD HOWEVER BE STATED THAT WHILST PART-TIME EMPLOYMENT IS NOT EXCLUDED FROM THE FIELD OF APPLICATION OF THE RULES ON FREEDOM OF MOVEMENT FOR WORKERS , THOSE RULES COVER ONLY THE PURSUIT OF EFFECTIVE AND GENUINE ACTIVITIES , TO THE EXCLUSION OF ACTIVITIES ON SUCH A SMALL SCALE AS TO BE REGARDED AS PURELY MARGINAL AND ANCILLARY . IT FOLLOWS BOTH FROM THE STATEMENT OF THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS AND FROM THE PLACE OCCUPIED BY THE RULES RELATING TO THAT PRINCIPLE IN THE SYSTEM OF THE TREATY AS A WHOLE THAT THOSE RULES GUARANTEE ONLY THE FREE MOVEMENT OF PERSONS WHO PURSUE OR ARE DESIROUS OF PURSUING AN ECONOMIC ACTIVITY .
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40
Furthermore, when exercising its right to ask a tenderer to clarify its tender, the contracting authority must treat tenderers equally and fairly, in such a way that a request for clarification does not appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 65 and the case-law cited).
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28. The Court has also held that an advertising slogan cannot be required to display ‘imaginativeness’ or even ‘conceptual tension which would create surprise and so make a striking impression’ in order to have the minimal level of distinctiveness required under Article 7(1)(b) of Regulation No 40/94 ( OHIM v Erpo Möbelwerk , paragraphs 31 and 32, and Audi v OHIM , paragraph 39).
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31. Paragraphs 43 to 46 of the contested judgment refer to paragraphs 30 and 31 of the contested decision according to which a slogan must display ‘imaginativeness’ or even ‘conceptual tension which would create surprise and so make a striking impression’ so as not to lack the minimal level of distinctiveness required by Article 7(1)(b) of Regulation No 40/94.
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64IN SO FAR AS THIS POWER HAS BEEN EXERCISED BY THE COMMUNITY , THE PROVISIONS ADOPTED BY IT PRECLUDE ANY CONFLICTING PROVISIONS BY THE MEMBER STATES .
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41. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 80; C‑304/01 Spain v Commission [2004] ECR I‑7655, paragraph 23; and Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation [2006] ECR I‑2689, paragraph 55).
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80 It should be borne in mind from the outset that the Community legislature enjoys a wide discretionary power in matters concerning the common agricultural policy, corresponding to the political responsibilities given to it by Articles 34 EC to 37 EC. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its power of assessment (see, to that effect, Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraphs 8 and 14).
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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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21. In fact, the expression ‘paid annual leave’, used by the EU legislature, in, inter alia, Article 7 of Directive 2003/88, means that, for the duration of annual leave within the meaning of that directive, the worker’s remuneration must be maintained. In other words, workers must continue to receive their normal remuneration throughout that period of rest and relaxation (see, Robinson-Steele and Others , C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 50; Schultz-Hoff and Others , EU:C:2009:18, paragraph 58; and Lock , C‑539/12, EU:C:2014:351, paragraph 16).
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58. However, according to the case-law of the Court, the expression ‘paid annual leave’ in Article 7(1) of Directive 2003/88 means that, for the duration of annual leave within the meaning of that directive, remuneration must be maintained and that, in other words, workers must receive their normal remuneration for that period of rest (see Robinson-Steele and Others , paragraph 50).
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27 Greece maintains that the complaints of which at least the gist is not set out in the application are inadmissible .
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47. Furthermore, the legislature has laid down with particular strictness that shapes necessary to obtain a technical result are unsuitable for registration as trade marks, since it has excluded the grounds for refusal listed in Article 7(1)(e) of Regulation No 40/94 from the scope of the exception under Article 7(3). If follows, therefore, from Article 7(3) of the regulation that, even if a shape of goods which is necessary to obtain a technical result has become distinctive in consequence of the use which has been made of it, it is prohibited from being registered as a trade mark (see by analogy, in relation to Article 3(3) of Directive 89/104, which is essentially identical to Article 7(3) of Regulation No 40/94, Philips , paragraph 57, and Case C-371/06 Benetton Group [2007] ECR I-7709, paragraphs 25 to 27).
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25. Furthermore, it must be stated that Article 3(3) of the Directive does not refer, for the purposes of establishing the extent of the exception laid down therein, to the signs referred to in Article 3(1)(e).
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65. C’est à la juridiction nationale qu’il incombe d’établir l’existence de ces deux éléments, dont la preuve doit être rapportée conformément aux règles du droit national, pour autant qu’il n’est pas porté atteinte à l’efficacité du droit de l’Union (arrêt Emsland-Stärke, précité, point 54).
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20. Ainsi, un manquement d’un État membre peut être en principe constaté au titre de l’article 226 CE quel que soit l’organe de cet État dont l’action ou l’inaction est à l’origine du manquement, même s’il s’agit d’une institution constitutionnellement indépendante (arrêts du 5 mai 1970, Commission/Belgique, 77/69, Rec. p. 237, point 15, et du 9 décembre 2003, Commission/Italie, C-129/00, Rec. p. I-14637, point 29).
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15 THE OBLIGATIONS ARISING FROM ARTICLE 95 OF THE TREATY DEVOLVE UPON STATES AS SUCH AND THE LIABILITY OF A MEMBER STATE UNDER ARTICLE 169 ARISES WHATEVER THE AGENCY OF THE STATE WHOSE ACTION OR INACTION IS THE CAUSE OF THE FAILURE TO FULFIL ITS OBLIGATIONS, EVEN IN THE CASE OF A CONSTITUTIONALLY INDEPENDENT INSTITUTION .
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33. Therefore, such an assessment is within the exclusive jurisdiction of the national courts which are called on to apply such a provision, and which have no choice but to give due effect to that immunity if they find that the opinions or votes at issue were expressed or cast in the exercise of parliamentary duties.
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51. As the Court has repeatedly held, the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT (see, among others, Case 268/83 Rompelman [1985] ECR 655, paragraph 19; Case 50/87 Commission v France [1988] ECR 4797, paragraph 15; Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15; and Case C-465/03 Kretztechnik [2005] ECR I‑4357, paragraph 34).
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19 FROM THE PROVISIONS SET FORTH ABOVE IT MAY BE CONCLUDED THAT THE DEDUCTION SYSTEM IS MEANT TO RELIEVE THE TRADER ENTIRELY OF THE BURDEN OF THE VAT PAYABLE OR PAID IN THE COURSE OF ALL HIS ECONOMIC ACTIVITIES . THE COMMON SYSTEM OF VALUE-ADDED TAX THEREFORE ENSURES THAT ALL ECONOMIC ACTIVITIES , WHATEVER THEIR PURPOSE OR RESULTS , PROVIDED THAT THEY ARE THEMSELVES SUBJECT TO VAT , ARE TAXED IN A WHOLLY NEUTRAL WAY .
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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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38. It should be recalled, as a preliminary point, that the principle of State liability for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty (judgments in Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 35, and in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-0000, paragraph 31). It follows that that principle holds good for any case in which a Member State breaches Community law (judgment in Brasserie du Pêcheur and Factortame , cited above, paragraph 32).
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31. In view of the foregoing considerations, the Court held in Francovich and Others , at paragraph 35, that the principle of State liability for loss and damage caused to individuals as a result of breaches of Community law for which it can be held responsible is inherent in the system of the Treaty.
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125. Il convient, à cet égard, de relever qu’il résulte de la jurisprudence de la Cour qu’un manquement d’un État membre peut être, en principe, constaté au titre de l’article 226 CE quel que soit l’organe de cet État dont l’action ou l’inaction est à l’origine du manquement, même s’il s’agit d’une institution constitutionnellement indépendante (arrêt du 9 décembre 2003, Commission/Italie, C‑129/00, Rec. p. I‑14637, point 29 et jurisprudence citée).
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33. Thus a provision such as Article 55 of the VAT Directive determines the point of reference for tax purposes of a supply of services and delimits the competences of the Member States. For that purpose, it aims to create a rational delimitation of the respective areas covered by national rules on VAT by determining in a uniform manner the point of reference for tax purposes of supplies of services (see, to that effect, judgment in Welmory , C‑605/12, EU:C:2014:2298, paragraphs 50 and 51).
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51. For that purpose, that provision aims to create a rational delimitation of the respective areas covered by national rules on VAT by determining in a uniform manner the point of reference for tax purposes of supplies of services.
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39. Furthermore, the Court came to the same conclusion with regard to public procurement contracts. In Case C-300/07 Hans & Christophorus Oymanns [2009] ECR I-0000, paragraph 64, the Court held that the concept of ‘public supply contracts’ referred to in the first paragraph of Article 1(2)(c) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) covers the purchase of products, irrespective of whether the product under consideration is supplied to consumers ready-made or after being manufactured in accordance with consumers’ requirements. In paragraph 66 of that judgment, the Court held that, where the goods supplied are individually manufactured and tailored to the needs of each customer, the manufacture of those goods is part of the supply of the goods at issue.
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24. It follows from the foregoing that there is between the Elegktiko Sinedrio and its commissioner attached to the Ministry of Culture and Tourism, who is the author of the ‘negative report’ at issue before it, a clear organisational and functional link, which means that it is impossible to regard the Elegktiko Sinedrio as a third party in relation to that commissioner (see, by analogy, Corbiau , paragraph 16, and Schmid , paragraph 38).
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16 In this instance, the Directeur des Contributions does not act as such a third party. Being at the head of the Direction des Contributions Directes et des Accises (Direct Taxes and Excise Duties Directorate), he has a clear organizational link with the departments which made the disputed tax assessment, against which the complaint submitted to him is directed. This is confirmed, moreover, by the fact that, if the matter were to come before the Conseil d' État on appeal, the Directeur des Contributions would be a party to the proceedings.
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17 In any event, as the Court has emphasized on several occasions, a Member State may not make the provision of services in its territory subject to compliance with all the conditions required for establishment and thereby deprive of all practical effectiveness the provisions whose object is to guarantee the freedom to provide services (see the judgments in Case C-154/89 Commission v France [1991] ECR I-659, paragraph 12, and in Case C-76/90 Saeger, cited above, paragraph 13).
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22 According to settled case-law, Article 119 of the Treaty precludes a national provision or a term of a collective agreement which applies independently of the sex of the worker, but actually affects a considerably higher percentage of women than men, unless that provision is justified by objective reasons unrelated to any discrimination on grounds of sex (see, to that effect, Seymour-Smith and Perez, paragraph 67; and Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung [1989] ECR 2743, paragraph 12).
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12 In such a situation, it must be concluded that a provision such as that in question results in discrimination against female workers in relation to male workers and must, in principle, be regarded as contrary to the aim of Article 119 of the Treaty . The position would be different only if the distinction between the two categories of employees were justified by objective factors unrelated to any discrimination on grounds of sex ( see the judgment of 13 May 1986 in Case 170/84, Bilka-Kaufhaus GmbH v Karin Weber von Hartz, ( 1986 ) ECR 1607 ).
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35 Such a scheme is intended to provide all the persons protected with cover against the risks of accidents at work and occupational diseases, irrespective of any fault which may have been committed by the victim, or by the employer, and therefore without any need for civil liability to be incurred by the person drawing benefits in respect of the risk activity.
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48. It should further be noted that the purpose of Article 22(1)(c)(i) of Regulation No 1408/71 is to confer a right to the services in kind provided, on behalf of the competent institution, by the institution of the place where the treatment is provided, in accordance with the provisions of the legislation of the Member State in which the services are provided as if the person concerned were registered with that institution (see Inizan , paragraph 20). The applicability of Article 22 of Regulation No 1408/71 to the situation in question does not mean that the person concerned may not simultaneously have the right under Article 49 EC to have access to healthcare in another Member State under rules on the assumption of costs different from those laid down by Article 22 (see to that effect Case C‑368/98 Vanbraekel and Others [2001] ECR I-5363, paragraphs 37 to 53).
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46 Consequently, it is necessary to examine whether the fact that the national legislation of a Member State does not guarantee a person insured in that State at least an equally advantageous level of cover when hospital services are provided in another Member State could be objectively justified.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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22. As far as concerns social security benefits the Court has, on several occasions, discussed the factors to be taken into consideration for the purposes of ascertaining the legal nature of such benefits. Thus, the Court has stated that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia , Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14, and Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15).
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14 IT FOLLOWS THAT AN ALLOWANCE LIKE THE ONE AT ISSUE , BEING A GENERAL SOCIAL BENEFIT , CANNOT BE CLASSIFIED UNDER ONE OF THE BRANCHES OF SOCIAL SECURITY LISTED IN ARTICLE 4 ( 1 ) OF REGULATION NO 1408/71 AND THEREFORE DOES NOT CONSTITUTE A SOCIAL SECURITY BENEFIT WITHIN THE SPECIFIC MEANING OF THE REGULATION .
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66. S’agissant des conséquences à tirer du constat d’une irrégularité résultant d’une telle pratique abusive, l’article 4, paragraphe 3, du règlement n o 2988/95, dont la portée est générale, énonce que «[l]es actes pour lesquels il est établi qu’ils ont pour but d’obtenir un avantage contraire aux objectifs du droit communautaire applicable en l’espèce, en créant artificiellement les conditions requises pour l’obtention de cet avantage, ont pour conséquence, selon le cas, soit la non-obtention de l’avantage, soit son retrait» (arrêt du 4 juin 2009, Pometon, C‑158/08, Rec. p. I‑4695, point 27).
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129. Furthermore, the fact that, in the context of applying European Union environmental legislation, certain matters contributing to the pollution of the air, sea or land territory of the Member States originate in an event which occurs partly outside that territory is not such as to call into question, in the light of the principles of customary international law capable of being relied upon in the main proceedings, the full applicability of European Union law in that territory (see to this effect, with regard to the application of competition law, Ahlström Osakeyhtiö and Others v Commission , paragraphs 15 to 18, and, with regard to hydrocarbons accidentally spilled beyond a Member State’s territorial sea, Case C‑188/07 Commune de Mesquer [2008] ECR I‑4501, paragraphs 60 to 62).
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62. It follows that, in the circumstances of the sinking of an oil tanker such as those at issue in the main proceedings, Directive 75/442 applies ratione loci .
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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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39. It should be recalled at the outset that the interest in bringing proceedings – a condition of admissibility – must continue up until the Court’s ruling on the substance. According to the case-law of the Court, such an interest exists as long as the appeal may, if successful, procure an advantage for the party bringing it (Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission [2010] ECR I‑0000, paragraphs 22 and 23).
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23. The Court also stated that such an interest exists as long as the appeal may, if successful, procure an advantage to the party bringing it (see, Case C-277/01 P Parliament v Samper [2003] ECR I-3019, paragraph 28, and Case C-362/05 P Wunenburger v Commission [2007] ECR I-4333, paragraph 42, and order of 8 April 2008 in Case C-503/07 Saint-Gobain Glass Deutschland v Commission [2008] ECR I-2217, paragraph 48 and the case-law cited).
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20. In the light of those findings, the Member State, if it transposes Article 5(2) of the Directive, must therefore grant protection which is at least as extensive for identical or similar goods or services as for non-similar goods or services. The Member State's option thus relates to the principle itself of granting greater protection to marks with a reputation, but not to the situations covered by that protection when the Member State grants it.
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170. It should be noted, however, that if the grounds of a decision of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such infringement is not one that should bring about the annulment of that decision and it is appropriate to carry out a substitution of grounds (see, to that effect, judgments in Lestelle v Commission , C‑30/91 P, EU:C:1992:252, paragraph 28, and FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 187 and the case-law cited).
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28 In that connection, it should be emphasized that if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but the operative part appears well founded on other legal grounds, the appeal must be dismissed.
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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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24. In that respect, it should be noted, first, that the Court has held that the criteria on the basis of which the Member States may derogate from the prohibitions laid down by the Directive must be set out in national provisions which are sufficiently clear and precise, given that a faithful transposition becomes particularly important in a case in which the management of the common heritage is entrusted to the Member States in respect of their respective territories (see to that effect, inter alia, Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9, and Case 252/85 Commission v France [1988] ECR 2243, paragraph 5).
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5 AVANT D' EXAMINER LES DIFFERENTS GRIEFS AVANCES PAR LA COMMISSION QUANT A LA CONFORMITE DE LA LEGISLATION FRANCAISE AVEC LA DIRECTIVE, IL CONVIENT D' OBSERVER QUE LA TRANSPOSITION EN DROIT INTERNE DES NORMES COMMUNAUTAIRES N' EXIGE PAS NECESSAIREMENT UNE REPRISE FORMELLE ET TEXTUELLE DE SES DISPOSITIONS DANS UNE DISPOSITION EXPRESSE ET SPECIFIQUE ET QU' ELLE PEUT SE SATISFAIRE D' UN CONTEXTE JURIDIQUE GENERAL, DES LORS QUE CELUI-CI ASSURE EFFECTIVEMENT LA PLEINE APPLICATION DE LA DIRECTIVE D' UNE FACON SUFFISAMMENT CLAIRE ET PRECISE ( VOIR ARRET DU 23 MAI 1985, COMMISSION/ALLEMAGNE, 29/84, REC . P . 1661 ). TOUTEFOIS, L' EXACTITUDE DE LA TRANSPOSITION REVET UNE IMPORTANCE PARTICULIERE DANS UN CAS COMME CELUI DE L' ESPECE OU LA GESTION DU PATRIMOINE COMMUN EST CONFIEE, POUR LEUR TERRITOIRE RESPECTIF, AUX ETATS MEMBRES .
PREMIER GRIEF : NON-TRANSPOSITION DE L' ARTICLE 5, SOUS B ) ET C ), DE LA DIRECTIVE
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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21
In that regard, it should be observed that the question referred relates to Article 4(3) TEU, which establishes the principle of sincere cooperation, under which the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union (judgment of 12 April 2011 in DHL Express France, C‑235/09, EU:C:2011:238, paragraph 58, and Opinion 2/13 of 18 December 2014, EU:C:2014:2454, paragraph 173), and to several provisions of the Charter.
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58. In that connection, it should be recalled that under the principle of sincere cooperation laid down in Article 4(3), second subparagraph, TEU, it is for the Member States’ courts to ensure judicial protection of an individual’s rights under European Union law (see, to that effect, Case C-432/05 Unibet [2007] ECR I‑2271, paragraph 38 and the case‑law cited). By virtue of that same provision, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. In particular, under Article 3 of Directive 2004/48, Member States are to provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by that Directive, including, inter alia, the rights of trade mark proprietors. In accordance with Article 3(2), those measures, procedures and remedies are to be effective, proportionate and dissuasive and are to be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
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78. De plus, lorsqu’une réglementation nationale met sur le même plan, aux fins de l’imposition des successions ou des donations, les résidents et les non-résidents ou les biens situés sur le territoire national et ceux situés hors dudit territoire, elle ne peut, sans créer de discrimination, les traiter différemment, dans le cadre de cette même imposition, en ce qui concerne les abattements fiscaux (voir, en ce sens, arrêt Arens‑Sikken, EU:C:2008:490, point 57).
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36 The overriding reasons relating to the public interest which have been acknowledged by the Court include the protection of workers (see Webb, cited above, paragraph 19, Joined Cases 62/81 and 63/81 Seco v EVI [1982] ECR 223, paragraph 14, and Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 18), and in particular the social protection of workers in the construction industry (Guiot, paragraph 16).
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14 IT IS WELL-ESTABLISHED THAT COMMUNITY LAW DOES NOT PRECLUDE MEMBER STATES FROM APPLYING THEIR LEGISLATION , OR COLLECTIVE LABOUR AGREEMENTS ENTERED INTO BY BOTH SIDES OF INDUSTRY RELATING TO MINIMUM WAGES , TO ANY PERSON WHO IS EMPLOYED , EVEN TEMPORARILY , WITHIN THEIR TERRITORY , NO MATTER IN WHICH COUNTRY THE EMPLOYER IS ESTABLISHED , JUST AS COMMUNITY LAW DOES NOT PROHIBIT MEMBER STATES FROM ENFORCING THOSE RULES BY APPROPRIATE MEANS . HOWEVER , IT IS NOT POSSIBLE TO DESCRIBE AS AN APPROPRIATE MEANS ANY RULE OR PRACTICE WHICH IMPOSES A GENERAL REQUIREMENT TO PAY SOCIAL SECURITY CONTRIBUTIONS , OR OTHER SUCH CHARGES AFFECTING THE FREEDOM TO PROVIDE SERVICES , ON ALL PERSONS PROVIDING SERVICES WHO ARE ESTABLISHED IN OTHER MEMBER STATES AND EMPLOY WORKERS WHO ARE NATIONALS OF NON-MEMBER COUNTRIES , IRRESPECTIVE OF WHETHER THOSE PERSONS HAVE COMPLIED WITH THE LEGISLATION ON MINIMUM WAGES IN THE MEMBER STATE IN WHICH THE SERVICES ARE PROVIDED , BECAUSE SUCH A GENERAL MEASURE IS BY ITS NATURE UNLIKELY TO MAKE EMPLOYERS COMPLY WITH THAT LEGISLATION OR TO BE OF ANY BENEFIT WHATSOEVER TO THE WORKERS IN QUESTION .
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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. While objectives of a purely economic nature cannot justify a restriction on the fundamental principle of free movement of goods, none the less, as regards interests of an economic nature concerning the maintenance of a balanced medical and hospital service open to all, the Court has accepted that such an objective may also fall within one of the derogations, on grounds of public health, in so far as it contributes to the attainment of a high level of health protection (see by analogy, in particular, Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 50, and Case C‑444/05 Stamatelaki [2007] ECR I‑3185, paragraph 31).
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31. The Court has likewise acknowledged that the objective of maintaining on grounds of public health a balanced medical and hospital service open to all may also fall within one of the derogations, on grounds of public health, provided for in Article 46 EC in so far as it contributes to the attainment of a high level of health protection ( Kohll , paragraph 50; Smits and Peerbooms , paragraph 73; and Müller-Fauré and van Riet , paragraph 67).
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19 It is clear from that case-law that if it sufficed, in order to qualify for payment of the refund at a higher rate, for the goods simply to be unloaded, the raison d' être of the system of varying the refund would be disregarded.
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49. The restrictive measures imposed by the national legislation should therefore be examined in turn in order to determine in each case in particular whether the measure is suitable for achieving the objective or objectives invoked by the Member State concerned and whether it does not go beyond what is necessary in order to achieve those objectives. In any case, those restrictions must be applied without discrimination (see to that effect Gebhard , paragraph 37, as well as Gambelli and Others , paragraphs 64 and 65, and Case C‑42/02 Lindman [2003] ECR I‑13519, paragraph 25).
The licensing requirement
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37 It follows, however, from the Court' s case-law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it (see Case C-19/92 Kraus v Land Baden-Wuerttemberg [1993] ECR I-1663, paragraph 32).
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9. À cet égard, il suffit de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (voir, notamment, arrêts du 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15).
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39 Individuals are therefore entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. That right has also been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see, in particular, Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Case C-424/99 Commission v Austria [2001] ECR I-9285, paragraph 45).
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18 LE CONTROLE JURIDICTIONNEL IMPOSE PAR CET ARTICLE EST L ' EXPRESSION D ' UN PRINCIPE GENERAL DE DROIT QUI SE TROUVE A LA BASE DES TRADITIONS CONSTITUTIONNELLES COMMUNES AUX ETATS MEMBRES . CE PRINCIPE A EGALEMENT ETE CONSACRE PAR LES ARTICLES 6 ET 13 DE LA CONVENTION EUROPEENNE DE SAUVEGARDE DES DROITS DE L ' HOMME ET DES LIBERTES FONDAMENTALES , DU 4 NOVEMBRE 1950 . COMME IL A ETE RECONNU PAR LA DECLARATION COMMUNE DE L ' ASSEMBLEE , DU CONSEIL ET DE LA COMMISSION , EN DATE DU 5 AVRIL 1977 ( JO C 103 , P . 1 ), ET PAR LA JURISPRUDENCE DE LA COUR , IL CONVIENT DE TENIR COMPTE DES PRINCIPES DONT S ' INSPIRE CETTE CONVENTION DANS LE CADRE DU DROIT COMMUNAUTAIRE .
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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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37. However, where the issuer of the invoice has in sufficient time wholly eliminated the risk of any loss in tax revenues, the principle of the neutrality of VAT requires that VAT which has been improperly invoiced can be adjusted without such adjustment being made conditional by the Member States upon the issuer of the relevant invoice having acted in good faith (see Schmeink & Cofreth and Strobel , paragraph 58, and Karageorgou and Others , paragraph 50).
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58 In such circumstances, where the issuer of the invoice has in sufficient time wholly eliminated the risk of any loss in tax revenues, the principle of the neutrality of VAT requires that VAT which has been improperly invoiced can be adjusted without such adjustment being made conditional by the Member States upon the issuer of the relevant invoice having acted in good faith.
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25 If a worker in a situation of the kind before the national court were allowed to rely on one of the other definitions of employed person set out in Article 1(a) in order to qualify for German family benefits, that would be tantamount to depriving the provision in the Annex of all effectiveness (Stöber and Pereira, cited above, paragraph 32).
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66. As regards, next, the argument concerning the balanced apportionment of the power to tax, it should be recalled that such a justification may be accepted, in particular, where the system in question is designed to prevent conduct capable of jeopardising the right of a Member State to exercise its tax jurisdiction in relation to activities carried out on in its territory (see Case C‑347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 42; Oy AA , paragraph 54; and Amurta , paragraph 58).
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54. That element of justification may be allowed, however, where the system in question is designed to prevent conduct capable of jeopardising the right of the Member States to exercise their taxing powers in relation to activities carried on in their territory ( Rewe Zentralfinanz , paragraph 42).
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90. In that regard, the Court cannot accept the view put forward by the referring court and Ireland that, where – as in Ireland – an application for subsidiary protection is dealt with in a separate procedure, necessarily after the rejection of an asylum application upon conclusion of an examination in which the applicant has been heard, it is not necessary for the applicant to be heard again for the purpose of considering his application for subsidiary protection because the formality of a hearing in a sense replicates the hearing which he has already had in a largely similar context.
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41. The fact that the supply of services in question will benefit the owner of the apartment at issue only after the contract has expired does not alter anything in that regard, seeing that, as from the conclusion of that contract, the parties to such a bilateral contract undertake to perform reciprocal services for each other (see, by analogy, Case C‑174/00 Kennemer Golf [2002] ECR I‑3293, paragraph 40, and RCI Europe , paragraphs 31 and 33).
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33. In a similar situation, the Court had occasion to state that the fact that an annual subscription fee is a fixed sum which cannot be related to each case of use does not alter the fact that there is reciprocal performance between the members and the supplier of services (see, to that effect, Kennemer Golf , paragraph 40). The annual subscription fees of members of an association can constitute consideration for the services provided by the association, even though members who do not use or do not regularly use the association’s services must still pay their annual subscription fees (see, to that effect, Kennemer Golf , paragraph 42).
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S’agissant du bien-fondé du présent moyen, il convient de rappeler que, selon une jurisprudence bien établie, la motivation
des actes des institutions de l’Union exigée à l’article 296 TFUE doit être adaptée à la nature de l’acte en cause et doit
faire apparaître de façon claire et non équivoque le raisonnement de l’institution, auteur de l’acte, de manière à permettre
aux intéressés de connaître les justifications de la mesure prise et à la juridiction compétente d’exercer son contrôle. L’exigence
de motivation doit être appréciée en fonction de toutes les circonstances de l’espèce, notamment du contenu de l’acte, de
la nature des motifs invoqués et de l’intérêt que les destinataires de l’acte ou d’autres personnes concernées directement
et individuellement par celui-ci peuvent avoir à recevoir des explications. Il n’est pas exigé que la motivation spécifie
tous les éléments de fait et de droit pertinents, dans la mesure où la question de savoir si la motivation d’un acte satisfait
aux exigences de l’article 296 TFUE doit être appréciée au regard non seulement de son libellé, mais aussi de son contexte
ainsi que de l’ensemble des règles juridiques régissant la matière concernée (arrêts Commission/Sytraval et Brink’s France,
C-367/95 P, EU:C:1998:154, point 63, ainsi que Nexans et Nexans France/Commission, C‑37/13 P, EU:C:2014:2030, points 31 et
32 et jurisprudence citée).
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52
Under Article 12 of the Association Agreement, the parties thereto have, in accordance with the exclusively economic aim which forms the basis of the EEC-Turkey Association, agreed to be guided by the provisions of primary EU law on the freedom of movement for workers, so that the principles accepted in the context of those provisions must be extended, so far as possible, to Turkish nationals who enjoy rights under that Association Agreement (see, to that effect, judgment in Ziebell, C‑371/08, EU:C:2011:809, paragraphs 58 and 65 to 68).
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68. It follows that, according to the Court’s case-law, such a transposition of the principles underlying the freedom of movement under European Union law may be justified only by the objective of progressively securing freedom of movement for Turkish workers pursued by the EEC-Turkey Association, as laid down in Article 12 of the Association Agreement (see, inter alia, Dörr and Ünal , paragraph 66). Yet Article 12, in referring to the Treaty articles relating to the free movement of workers, confirms that the purpose underpinning that association is solely economic in nature.
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35 Moreover, it is clear from the structure of the basic regulation that injury must be established in relation to the time when any decision imposing protective measures is adopted, which provides justification for the fact that the data indicated in the proposal for a decision submitted by the Commission in 1983 were brought up to date in the context of its 1986 proposal which led to the adoption of the contested decision .
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42. In that respect, it should be pointed out that there is nothing before the Court to suggest that the public health grounds on which the Swedish authorities rely in the circumstances set out in paragraphs 44 and 48 of the present judgment have been diverted from their purpose and used in such a way as to discriminate against goods originating in other Member States or indirectly to protect certain national products (Case C‑405/98 Gourmet International Products [2001] ECR I‑1795, paragraph 32, and case-law cited).
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32 It should be pointed out, first, that there is no evidence before the Court to suggest that the public health grounds on which the Swedish authorities rely have been diverted from their purpose and used in such a way as to discriminate against goods originating in other Member States or to protect certain national products indirectly (Case 34/79 Regina v Henn and Darby [1979] ECR 3795, paragraph 21, and Aragonesa de Publicidad Exterior and Publivía, cited above, paragraph 20).
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55. Thus, on the date when the project at issue in the main proceedings was adopted, the Hellenic Republic was not obliged to have produced the management plans for the river basin districts affected by that project. Even though the time-limit for the transposition of Directive 2000/60, as fixed in the first subparagraph of Article 24(1) thereof, had expired, the time-limit laid down in Article 13(6) of the directive for the publication of river basin management plans had not yet been reached.
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29. In the first place, as regards the question whether the transfer of 30% of the shares in a company may constitute a transfer of a totality of assets or part thereof, it must be observed that the first sentence of Article 5(8) of the Sixth Directive provides that Member States may, in the event of a transfer of a totality of assets or part thereof, consider that no supply of goods has taken place and that the recipient is the successor to the transferor. It follows that, where a Member State has exercised that option, the transfer of a totality of assets or part thereof is not regarded as a supply of goods for the purposes of the Sixth Directive and is not subject to VAT under Article 2 of that directive (see Case C‑408/98 Abbey National [2001] ECR I‑1361, paragraph 30; Case C‑497/01 Zita Modes [2003] ECR I‑14393, paragraph 29; SKF , paragraph 36; and Case C‑444/10 Schriever [2011] ECR I‑0000, paragraph 20).
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20. First of all, it should be observed that the first sentence of Article 5(8) of the Sixth Directive provides that Member States may, in the event of a transfer of a totality of assets or part thereof, consider that no supply of goods has taken place and that the recipient is the successor to the transferor. It follows that, where a Member State has exercised that option, the transfer of a totality of assets or part thereof is not regarded as a supply of goods for the purposes of the Sixth Directive and, accordingly, is not subject to VAT under Article 2 of that directive (see, to that effect, Case C‑408/98 Abbey National [2001] ECR I‑1361, paragraph 30; Case C‑497/01 Zita Modes [2003] ECR I‑14393, paragraph 29; and Case C‑29/08 SFK [2009] ECR I‑10413, paragraph 36).
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6 The Greek Government contends that the complaints formulated in the summary report are unfounded.
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51
Thus, the Cypriot legislation may deter the abovementioned group of civil servants from leaving Cyprus to work within an EU institution since, by accepting employment within such an institution, they lose the right to benefit under the national sickness insurance scheme from old-age benefits to which they would have been entitled had they not accepted that employment (see, to that effect, judgments in My, C‑293/03, EU:C:2004:821, paragraph 47; Rockler, C‑137/04, EU:C:2006:106, paragraph 19; and Öberg, C‑185/04, EU:C:2006:107, paragraph 16).
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16. National legislation which does not take into account, for the calculation of the amount of parental benefit, periods of employment completed under the Joint Sickness Insurance Scheme of the European Communities is likely to dissuade citizens of a Member State from working within an institution of the European Union situated in another Member State since by accepting employment with such an institution they lose the right to benefit under the national sickness insurance scheme from family benefits to which they would have been entitled had they not accepted that employment (see to that effect, My , paragraph 47).
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117. It is thus for the General Court, sitting in a different composition from that which heard the dispute giving rise to the proceedings whose duration is criticised, to assess both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings at issue by examining the evidence submitted for that purpose (see, in particular, Groupe Gascogne v Commission EU:C:2013:770, paragraphs 88 and 90).
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59
As regards the requirements to be met during the proceedings, it must be borne in mind that all the provisions of Regulation No 44/2001 express the intention to ensure that, within the scope of the objectives of that regulation, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence are observed (see, to that effect, G, C‑292/10, EU:C:2012:142, paragraph 47, and A, C‑112/13, EU:C:2014:2195, paragraph 51 and the case-law cited).
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51. Furthermore, the provisions of EU law, such as those of Regulation No 44/2001, must be interpreted in the light of fundamental rights which, according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures and which are now set out in the Charter (see, to that effect, Google Spain and Google , C‑131/12, EU:C:2014:317, paragraph 68 and the case-law cited). In that respect, it must be borne in mind that all the provisions of Regulation No 44/2001 express the intention to ensure that, within the scope of the objectives of that regulation, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence enshrined in Article 47 of the Charter are observed (see Hypoteční banka , C‑327/10, EU:C:2011:745, paragraphs 48 and 49, and G , C‑292/10, EU:C:2012:142, paragraphs 47 and 48 and the case-law cited).
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58. En outre, la Cour a souligné itérativement que la dérogation prévue à l’article 45, premier alinéa, CE doit être restreinte aux seules activités qui, prises en elles-mêmes, constituent une participation directe et spécifique à l’exercice de l’autorité publique (arrêts précités Reyners, point 45; Thijssen, point 8; Commission/Espagne, point 35, et Servizi Ausiliari Dottori Commercialisti, point 46, ainsi que arrêts du 29 novembre 2007, Commission/Allemagne, C-404/05, point 38, et Commission/Portugal, précité, point 36).
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