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36. Thus, the alleged victim of an infringement of personality rights by means of content placed online, which is protected in all the Member States may, on the basis that the harmful even occurred there, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised (see, eDate Advertising and Martinez , paragraph 52). Furthermore, given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the alleged victim may choose to bring an action in one forum in respect of all of the damage caused ( eDate Advertising and Martinez , paragraph 48).
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48. The connecting criteria referred to in paragraph 42 of the present judgment must therefore be adapted in such a way that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred. Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice, referred to in paragraph 40 above.
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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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27. However, the detailed procedural rules governing actions for safeguarding the rights which taxpayers derive from EU law must not be any less favourable than those governing similar domestic actions (principle of equivalence) and must not be framed in such a way as to render impossible in practice or excessively difficult the exercise of rights conferred by the legal order of the European Union (principle of effectiveness) (see, to that effect, inter alia, judgments in Rewe-Zentralfinanz and Rewe-Zentral , 33/76, EU:C:1976:188, paragraph 5; Transportes Urbanos y Servicios Generales , C‑118/08, EU:C:2010:39, paragraph 31; and Test Claimants in the Franked Investment Income Group Litigation , C‑362/12, EU:C:2013:834, paragraph 32).
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5 THE PROHIBITION LAID DOWN IN ARTICLE 13 OF THE TREATY AND THAT LAID DOWN IN ARTICLE 13 OF REGULATION NO 159/66/EEC HAVE A DIRECT EFFECT AND CONFER ON CITIZENS RIGHTS WHICH THE NATIONAL COURTS ARE REQUIRED TO PROTECT .
APPLYING THE PRINCIPLE OF COOPERATION LAID DOWN IN ARTICLE 5 OF THE TREATY , IT IS THE NATIONAL COURTS WHICH ARE ENTRUSTED WITH ENSURING THE LEGAL PROTECTION WHICH CITIZENS DERIVE FROM THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW .
ACCORDINGLY , IN THE ABSENCE OF COMMUNITY RULES ON THIS SUBJECT , IT IS FOR THE DOMESTIC LEGAL SYSTEM OF EACH MEMBER STATE TO DESIGNATE THE COURTS HAVING JURISDICTION AND TO DETERMINE THE PROCEDURAL CONDITIONS GOVERNING ACTIONS AT LAW INTENDED TO ENSURE THE PROTECTION OF THE RIGHTS WHICH CITIZENS HAVE FROM THE DIRECT EFFECT OF COMMUNITY LAW , IT BEING UNDERSTOOD THAT SUCH CONDITIONS CANNOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE .
WHERE NECESSARY , ARTICLES 100 TO 102 AND 235 OF THE TREATY ENABLE APPROPRIATE MEASURES TO BE TAKEN TO REMEDY DIFFERENCES BETWEEN THE PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION IN MEMBER STATES IF THEY ARE LIKELY TO DISTORT OR HARM THE FUNCTIONING OF THE COMMON MARKET .
IN THE ABSENCE OF SUCH MEASURES OF HARMONIZATION THE RIGHT CONFERRED BY COMMUNITY LAW MUST BE EXERCISED BEFORE THE NATIONAL COURTS IN ACCORDANCE WITH THE CONDITIONS LAID DOWN BY NATIONAL RULES .
THE POSITION WOULD BE DIFFERENT ONLY IF THE CONDITIONS AND TIME-LIMITS MADE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS WHICH THE NATIONAL COURTS ARE OBLIGED TO PROTECT .
THIS IS NOT THE CASE WHERE REASONABLE PERIODS OF LIMITATION OF ACTIONS ARE FIXED .
THE LAYING DOWN OF SUCH TIME-LIMITS WITH REGARD TO ACTIONS OF A FISCAL NATURE IS AN APPLICATION OF THE FUNDAMENTAL PRINCIPLE OF LEGAL CERTAINTY PROTECTING BOTH THE TAX-PAYER AND THE ADMINISTRATION CONCERNED .
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23. Selon une jurisprudence constante, il découle des exigences tant de l’application uniforme du droit de l’Union que du principe d’égalité que les termes d’une disposition du droit de l’Union qui ne comporte aucun renvoi exprès au droit des États membres pour déterminer son sens et sa portée doivent normalement trouver, dans toute l’Union, une interprétation autonome et uniforme qui doit être recherchée en tenant compte du contexte de la disposition et de l’objectif poursuivi par la réglementation en cause (voir, notamment, arrêt du 27 juin 2013, Malaysia Dairy Industries, C‑320/12, point 25 et jurisprudence citée).
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60. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 55). The reasoned opinion and the application must be based on the same grounds and pleas, with the result that the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion (Case 76/86 Commission v Germany [1989] ECR 1021, paragraph 8), which for its part 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-350/02 Commission v Netherlands [2004] ECR I-6213, paragraph 20).
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8 Reference should be made in that regard to the established case-law of the Court, set out most recently in the judgments of 7 May 1987 in Case 186/85 Commission v Belgium (( 1987 )) ECR 2029, paragraph 13 and of 14 July 1988 in Case 298/86 Commission v Belgium (( 1988 )) ECR 4343, paragraph 10, according to which the scope of an action brought under Article 169 of the Treaty is delimited by the preliminary administrative procedure provided for by that article . The Commission' s reasoned opinion and its application must be founded on the same grounds and submissions and it follows that the Court cannot consider a complaint that was not formulated in the reasoned opinion .
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20. So far as concerns the profession of architect, amongst others, Directive 2005/36 provides — as is apparent from recital 19 in the preamble thereto — for a system of automatic recognition of the evidence of formal qualifications based on coordinated minimum conditions for training.
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68
In that regard, the Court has stated that that approach is intended to apply only if there is a valid point of reference (judgments of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 96, and of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 47). That is so in the case in the main proceedings.
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96. It should be noted that that approach is intended to apply only if there is such a valid point of reference. However, it should be noted that there is no such valid point of reference in the context of legislation such as that at issue in the main proceedings, under which it is not possible to identify a category of favoured civil servants. Paragraphs 27 and 28 of the old version of the BbesG apply to all civil servants upon their appointment and, as is apparent from paragraph 42 above, the discriminatory aspects arising from those provisions potentially affect all civil servants.
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30. To the extent that input VAT relating to expenditure incurred by a taxpayer is connected with activities which, in view of their non-economic nature, do not fall within the scope of the Sixth Directive, it cannot give rise to a right to deduct.
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45 Furthermore, while the Netherlands Government may have taken the view that the information provided by the national court was not sufficient to enable it to take a position on certain aspects of the questions referred, it must be emphasised that further information was made available in the documents forwarded by the national court, as well as in the written observations and the answers given to the question put by the Court. All that information, which appears in the Report for the Hearing, was brought to the attention of the Governments of the Member States and the other interested parties for the purposes of the hearing, at which they had an opportunity to enlarge upon their observations (see Albany, paragraph 43, and Brentjens', paragraph 42).
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42 Furthermore, even though the French Government may have taken the view in this case that the information provided by the national court was not sufficient to enable it to take a position on certain aspects of the questions submitted to the Court, it must be emphasised that further information was made available in the documents forwarded by the national court, the written observations and the answers given to the questions raised by the Court. All that information, which was included in the Report for the Hearing, was brought to the notice of the governments of the Member States and the other interested parties for the purposes of the hearing, at which they had an opportunity, if necessary, to amplify their observations.
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40. It follows that the term "needs in the general interest" in Article 1(b) of Directive 93/36 is a Community-law concept and must be interpreted in the light of the context of that article and the purpose of that directive.
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29. L’intervention des juridictions nationales résulte de l’effet direct reconnu à l’interdiction de mise à exécution des projets d’aide édictée à l’article 108, paragraphe 3, dernière phrase, TFUE. À cet égard, la Cour a précisé que le caractère immédiatement applicable de l’interdiction de mise à exécution visée à cette disposition s’étend à toute aide qui aurait été mise à exécution sans être notifiée (arrêts Lorenz, précité, point 8; du 21 novembre 1991, Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon, ci-après l’«arrêt FNCE», C‑354/90, Rec. p. I‑5505, point 11, ainsi que SFEI e.a., précité, point 39).
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8 IT HAS ALREADY BEEN DECIDED IN THE JUDGMENT OF 15 JULY 1964 ( CASE 6/64, REC . 1964, P . 1141 ), THAT THE PROHIBITION ON IMPLEMENTATION REFERRED TO IN THE LAST SENTENCE OF ARTICLE 93 ( 3 ) HAS A DIRECT EFFECT AND GIVES RISE TO RIGHTS IN FAVOUR OF INDIVIDUALS, WHICH NATIONAL COURTS ARE BOUND TO SAFEGUARD .
THE IMMEDIATELY APPLICABLE NATURE OF THIS PROHIBITION EXTENDS TO THE WHOLE OF THE PERIOD TO WHICH IT APPLIES .
THUS THE DIRECT EFFECT OF THE PROHIBITION EXTENDS TO ALL AID WHICH HAS BEEN IMPLEMENTED WITHOUT BEING NOTIFIED AND, IN THE EVENT OF NOTIFICATION, OPERATES DURING THE PRELIMINARY PERIOD, AND WHERE THE COMMISSION SETS IN MOTION THE CONTENTIOUS PROCEDURE, UP TO THE FINAL DECISION .
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17 First, an action for failure to act cannot be used to challenge the legal basis of a measure which has already been adopted .
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79. In that regard, it must be noted that, as the Court has consistently held, while a prohibition such as that under the Spanish legislation, which entails the obligation to use a sales name other than that used in the Member State of production, does not absolutely preclude the importation into the Member State concerned of products originating in other Member States, it is nevertheless likely to make their marketing more difficult and thus impede trade between Member States (see, to that effect, inter alia , Case 182/84 Miro [1985] ECR 3731, paragraph 22; Case 298/87 Smanor [1988] ECR 4489, paragraph 12; Case 286/86 Deserbais [1988] ECR 4907, paragraph 12; and Case C-448/98 Guimont [2000] ECR I-10663, paragraph 26).
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26 National legislation which subjects goods from other Member States, where they are lawfully manufactured and marketed, to certain conditions in order to be able to use the generic designation commonly used for that product, and which thus in certain cases requires producers to use designations which are unknown to, or less highly regarded by, consumers, does not, it is true, absolutely preclude the importation into the Member State concerned of products originating in other Member States. It is, however, likely to make their marketing more difficult and thus impede trade between Member States (Case 298/87 Smanor [1988] ECR 4489, paragraph 12).
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205. Finally, in light of the line of argument put forward by the Republic of Austria as to the need to authorise hunting of capercaillie and black grouse so that the hunters may conserve and maintain their habitat, it is to be observed that while the protection of flora is admittedly one of the grounds of derogation set out in the fourth indent of Article 9(1)(a) of the Directive, protection of that habitat can be ensured regardless of hunting (see, to this effect, Commission v Finland , paragraphs 35 and 40).
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69 Second, while it is settled case-law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to determine whether it has jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20; Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39; Case C-340/99 TNT Traco [2001] ECR I-4109, paragraph 31, and Case C-472/99 Clean Car Autoservice [2001] ECR I-9687, paragraph 14).
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20 It must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59). Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Bosman, paragraph 61, and Case C-437/97 Evangelischer Krankenhausverein Wien and Others v Abgabenberufungskommission Wien and Others [2000] ECR I-1157, paragraph 52).
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36. In that regard, recital 11 in the preamble to Regulation No 44/2001 provides that the rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and that jurisdiction must always be available on this ground, save in a few well‑defined situations in which the subject‑matter of the litigation or the autonomy of the parties warrants a different linking factor.
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43. To give companies the right to elect to have their losses taken into account in the Member State in which they are established or in another Member State would seriously undermine a balanced allocation of the power to impose taxes between the Member States (see Oy AA , paragraph 55), in that the taxable bases would be altered in both States to the extent of the losses transferred.
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55. The Court has thus held that to give companies the right to elect to have their losses taken into account in the Member State in which they are established or in another Member State would seriously undermine a balanced allocation of the power to impose taxes between the Member States ( Marks & Spencer , paragraph 46, and Rewe Zentralfinanz , paragraph 42).
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16. Il est certes vrai que, ainsi que l’a rappelé la Cour dans son arrêt du 9 juillet 1992, Commission/Belgique (C‑2/90, Rec. p. I‑4431, point 34), la particularité des déchets et le principe de la correction, par priorité à la source, des atteintes à l’environnement impliquent qu’il appartient à chaque région, commune ou autre entité locale de prendre les mesures appropriées afin d’assurer la réception, le traitement et l’élimination de ses propres déchets, et que ceux‑ci doivent donc être éliminés aussi près que possible du lieu de leur production, en vue de limiter leur transport autant que faire se peut.
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Par ailleurs, la Cour a itérativement jugé que, si un acte de portée générale fait ressortir l’essentiel de l’objectif poursuivi
par l’institution, il serait excessif d’exiger une motivation spécifique pour les différents choix techniques opérés (voir,
notamment, arrêts Espagne/Conseil, C‑284/94, EU:C:1998:548, point 30, Espagne/Conseil, C‑310/04, EU:C:2006:521, point 59,
ainsi que Estonie/Parlement et Conseil, C‑508/13, EU:C:2015:403, point 60).
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59. Moreover, the Court has repeatedly held that 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 the various technical choices made (see, inter alia, Case C‑284/94 Spain v Council [1998] ECR I‑7309, paragraph 30).
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50. S’agissant, en premier lieu, de la répartition équilibrée du pouvoir d’imposition entre les États membres, invoquée par tous les gouvernements ayant présenté des observations ainsi que par la Commission, il y a lieu de rappeler qu’il s’agit d’un objectif légitime reconnu par la Cour (voir, notamment, arrêts du 29 novembre 2011, National Grid Indus, C‑371/10, Rec. p. I‑12273, point 45, et du 6 septembre 2012, Philips Electronics UK, C‑18/11, point 23) qui peut rendre nécessaire l’application, aux activités économiques des contribuables établis dans l’un desdits États membres, des seules règles fiscales de celui-ci, pour ce qui est tant des bénéfices que des pertes (voir, en ce sens, arrêts précités Marks & Spencer, point 45; Oy AA, point 54, ainsi que Lidl Belgium, point 31).
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51. Admittedly, as is clear from settled case-law, the powers of the Community must be exercised in observance of international law, including provisions of international agreements in so far as they codify customary rules of general international law (see, to this effect, Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paragraphs 9 and 10; Case C-405/92 Mondiet [1993] ECR I‑6133, paragraphs 13 to 15; and Case C-162/96 Racke [1998] ECR I‑3655, paragraph 45). None the less, it does not appear that Regulations 9 and 11(b) of Annex I to Marpol 73/78 and Regulations 5 and 6(b) of Annex II to that Convention are the expression of customary rules of general international law.
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14 Article 6 of the Geneva Convention of 29 April 1958 recognizes the interests of coastal States in the living resources in any area of the high seas adjacent to their territorial sea. In addition, Articles 117 and 118 of the United Nations Convention on the Law of the Sea impose a duty on all members of the international community to cooperate in the conservation and management of the living resources of the high seas (Poulsen and Diva Navigation, cited above, paragraph 11).
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32. In paragraphs 43 to 45 of the contested judgment, the Court of First Instance rightly rejected that requirement, essentially on the ground that it is inappropriate to apply to slogans criteria which are stricter than those applicable to other types of sign.
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6 As the Court has consistently held in judgments concerning the implementation of directives, 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 a Member State' s obligations under the Treaty (judgment in Case 168/85 Commission v Italy [1986] ECR 2945, paragraph 13).
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13 FURTHERMORE , THAT ARGUMENT IS ILL-FOUNDED . THE INCOMPATIBILITY OF NATIONAL LEGISLATION WITH PROVISIONS OF THE TREATY , 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 . AS THE COURT HAS CONSISTENTLY HELD WITH REGARD TO THE IMPLEMENTATION OF DIRECTIVES BY THE MEMBER STATES , 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 .
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10 It was following those judgments that the Council adopted, on 20 March 1989, the abovementioned Regulation No 764/89. That Regulation inserted a new Article 3a in Regulation No 857/84 providing essentially that producers who have not, pursuant to an undertaking entered into under Regulation No 1078/77, delivered milk during the reference year are to obtain, subject to certain conditions, a special reference quantity calculated on the basis of the quantity of milk delivered or the quantity of milk equivalent sold by the producer during the twelve calendar months preceding the month in which the application for the non-marketing or conversion premium was made.
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28. In that regard, it must first be observed that Article 234 EC is an instrument of judicial cooperation, by means of which the Court provides the national courts with the points of interpretation of Community law which may be helpful to them in assessing the effects of a provision of national law at issue in the disputes before them (see, to that effect, Case C-254/98 TK-Heimdienst [1998] ECR I-151, paragraph 12, and 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, paragraph 22).
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22 It will be recalled in respect of the first submission that, although the Court has no jurisdiction under Article 234 EC to apply a rule of Community law to a particular case and thus to judge a provision of national law by reference to such a rule it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of that provision (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5).
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55. It follows that Ms Morgenbesser is not able to rely on Directive 89/48.
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43. Secondly, in regard to Articles 2(1) and 5(1) of Directive 76/207, it is settled case-law that national provisions discriminate indirectly against women where, although worded in neutral terms, they work 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, in particular, Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 29; Case C‑322/98 Kachelmann [2000] ECR I-7505, paragraph 23; and Case C-25/02 Rinke [2003] ECR I-8349, paragraph 33).
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29 According to the Court's case-law, national provisions or rules relating to pay or social security benefits, access to employment and working conditions discriminate indirectly against women where, although worded in neutral terms, they work 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, in particular, Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung [1989] ECR 2743, paragraph 12, and Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, paragraph 22).
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5. By letter of 30 December 1999, that municipality informed Coname that, by decision of 21 December 1999, the municipal council had entrusted the service covering the management, distribution and maintenance of the methane gas distribution installations for the period from 1 January 2000 to 31 December 2005 to Padania. The latter company’s share capital is predominantly public, held by the province of Cremona and almost all the municipalities of that province. The Comune di Cingia de’ Botti holds a 0.97% share in the capital of that company.
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49. In that context, it must be recalled that the Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters within the jurisdiction of the national court (see, in particular, Case 253/03 CLT‑UFA [2006] ECR I‑1831, paragraph 36, and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 69).
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36. The Court thus has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case 13/68 Salgoil [1968] ECR 661; Case 51/74 Van der Hulst [1975] ECR 79, paragraph 12; Case C-320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11; Lirussi and Bizzaro , paragraph 38, and RAR , paragraph 47).
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40. En effet, au regard de l’objectif du règlement nº 469/2009, tel que rappelé au point 31 du présent arrêt, à savoir compenser le retard pris par le titulaire d’un brevet de base dans l’exploitation commerciale de son invention par une durée supplémentaire d’exclusivité, d’une part, l’octroi d’un premier CCP sur le principe actif unique irbésartan a déjà permis à son titulaire de bénéficier d’une telle compensation et, d’autre part, l’objectif de ce règlement n’est pas de compenser intégralement les retards pris dans la commercialisation de son invention ni de compenser de tels retards en lien avec toutes les formes de commercialisation possibles de ladite invention, y compris sous la forme de compositions déclinées autour du même principe actif.
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18 Although no justification is mentioned in the order for reference and the Italian Government likewise has not mentioned any in its written observations, it is clear from the object of the legislation at issue that the contested measure may be regarded as having been adopted in relation to public security, a concept which, within the meaning of the Treaty, includes the external security of a Member State (see Case C-367/89 Richardt and Les Accessoires Scientifiques [1991] ECR I-4621, paragraph 22).
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22 In that respect, it is necessary to state, along with the Commission and the Member States which submitted written observations to the Court, that the concept of public security within the meaning of Article 36 of the Treaty covers both a Member State' s internal security and its external security. It is common ground that the importation, exportation and transit of goods capable of being used for strategic purposes may affect the public security of a Member State, which it is therefore entitled to protect pursuant to Article 36 of the Treaty.
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55. Such a condition if fulfilled where the provision relied upon contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see Case 12/86 Demirel [1987] ECR 3719, paragraph 14; Case C‑213/03 Pêcheurs de l’étang de Berre [2004] ECR I‑7357, paragraph 39; and Case C‑240/09 Lesoochranárske zoskupenie [2011] ECR I‑0000, paragraph 44 and the case-law cited).
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49. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34; Case C‑248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68; and Case C-41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 15).
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68 In that regard, it follows from Article 225 EC, the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergadem and Goupil v Commission [2000] ECR I-5291, paragraph 34).
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59. There appears, however, to be no objective ground capable of justifying such a difference in treatment.
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34 As regards Article 43 of the Treaty, it is settled case-law that that article is the appropriate legal basis for any legislation concerning the production and marketing of the agricultural products listed in Annex II to the EC Treaty which contributes to the attainment of one or more of the objectives of the common agricultural policy set out in Article 39 of the EC Treaty (now Article 33 EC) (Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 14, Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paragraph 133 and Commission v Council, cited above, paragraph 47). Moreover, Article 42 of the Treaty authorises the Council to provide for the grant of aid for production of and trade in agricultural products, account being taken of the objectives set out in Article 39, notwithstanding the provisions of the chapter of the Treaty which concern rules on competition.
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47 As the Court has pointed out in Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paragraph 133, and the case-law cited therein, it is clear from settled case-law that Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the attainment of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty.
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77
Indeed, while it is not always necessary that a tax measure, in order for it to be established that it is selective, should derogate from an ordinary tax system, the fact that it can be so characterised is highly relevant in that regard where the effect of that measure is that two categories of operators are distinguished and are subject, a priori, to different treatment, namely those who fall within the scope of the derogating measure and those who continue to fall within the scope of the ordinary tax system, although those two categories are in a comparable situation in the light of the objective pursued by that system.
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34 It is well settled that it is for the national courts alone, before which the proceedings are pending and which will be responsible for the eventual judgment, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is clear that the interpretation of Community law requested bears no relation to the true nature of the case or the subject-matter of the main action (see in particular Case C-129/94 Ruiz Barnáldez [1996] ECR I-0000, paragraph 7). That is, however, not the case in the main proceedings.
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7. On this point, the Court has consistently held that it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (see, inter alia , Case C-143/94 Furlanis Costruzioni Generali [1995] ECR I-0000, paragraph 12). That is not so, however, in the main proceedings in this case.
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21. À cet égard, si le régime instauré à la DA 27 ne limite pas l’acquisition de participations stricto sensu, il a pour effet d’empêcher ou de restreindre l’exercice des droits de vote afférents aux actions détenues.
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29. Under Article 5(3)(a) and (b) of Directive 91/676, and Annex II.A, point 1, thereto, those action programmes are to take into account the best available scientific and technical data (see, by analogy, the judgment in Commission v Ireland , C‑418/04, EU:C:2007:780, paragraph 63, and the physical, geological and climatic conditions of each region (see, to that effect, Commission v Netherlands , EU:C:2003:532, paragraphs 136 and 155).
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41. The Directive seeks to create the instruments needed to ensure that waters in the Community are protected against pollution caused by nitrates from agricultural sources (Case C-293/97 Standley and Others [1999] ECR I-2603, paragraph 39, and Case C-161/00 Commission v Germany [2002] ECR I-2753, paragraph 42).
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27. Il découle des règles régissant la procédure devant les juridictions de l’Union, notamment des articles 21 du statut de la Cour et 44, paragraphe 1, du règlement de procédure du Tribunal, que le litige est en principe déterminé et circonscrit par les parties et que le juge de l’Union ne peut statuer ultra petita.
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20. On this point, it must be noted that, according to settled case‑law of the Court, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by European Union law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent (see Case C‑196/09 Miles and Others [2011] ECR I‑5105, paragraph 37 and the case‑law cited).
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37. According to settled case-law, in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, inter alia, Case C‑54/96 Dorsch Consult [1997] ECR I‑4961, paragraph 23; Case C‑53/03 Syfait and Others [2005] ECR I‑4609, paragraph 29; Case C‑246/05 Häupl [2007] ECR I‑4673, paragraph 16; and Case C‑118/09 Koller [2010] ECR I‑0000, paragraph 22).
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28 ATTENDU QU ' EN RELATION AVEC LES ECHANGES AVEC LES PAYS TIERS , LE TRAITE NE CONTIENT PAS DE DISPOSITIONS EXPLICITES ANALOGUES A CELLES QUI , DANS LES ECHANGES ENTRE LES ETATS MEMBRES , INTERDISENT LES TAXES D ' EFFET EQUIVALANT AUX DROITS DE DOUANE ;
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36. In that connection it is important to bear in mind that, since the harmfulness of narcotic drugs, including those derived from hemp, such as cannabis, is generally recognised, there is a prohibition in all the Member States on marketing them, with the exception of strictly controlled trade for use for medical and scientific purposes (see, to that effect, Case 50/80 Horvath [1981] ECR 385, paragraph 10; Case 221/81 Wolf [1982] ECR 3681, paragraph 8; Case 240/81 Einberger [1982] ECR 3699, paragraph 8; Case 294/82 Einberger [1984] ECR 1177, paragraph 15; Case 269/86 Mol [1988] ECR 3627, paragraph 15; and Vereniging Happy Family Rustenburgerstraat , paragraph 17).
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8 AS THE COURT POINTED OUT IN THE HORVATH JUDGMENT CITED ABOVE , DRUGS SUCH AS MORPHINE , HEROIN AND COCAINE DISPLAY SPECIAL FEATURES IN SO FAR AS THEIR HARM FULNESS IS GENERALLY RECOGNIZED AND THEIR IMPORTATION AND MARKETING ARE PROHIBITED IN ALL THE MEMBER STATES , EXCEPT IN TRADE WHICH IS STRICTLY CONTROLLED AND LIMITED TO AUTHORIZED USE FOR PHARMACEUTICAL AND MEDICAL PURPOSES .
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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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71. According to settled case-law, the definition of aid is more general than that of a subsidy as it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see judgments in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , C‑143/99, EU:C:2001:598, paragraph 38; Paint Graphos and Others , C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 45; and Commission and Spain v Government of Gibraltar and United Kingdom , C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 71).
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38 The concept of aid is more general than that of a subsidy. It embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 19; Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 13; and Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 34).
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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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75
Those users include suppliers of electricity, the Court having stated, inter alia, that, in order for eligible customers to be able, as stated in recital 4 of Directive 2003/54, freely to choose their suppliers, it is necessary that suppliers should have the right to access the distribution systems which carry electricity to customers (see, to that effect, judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraphs 32, 33 and 43).
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33. The Court has inferred from this, first, that, in order for eligible customers to be able freely to choose their suppliers, it is necessary that suppliers should have the right to access the transmission and distribution systems which carry electricity to customers and, second, that open third party access to transmission and distribution systems constitutes one of the essential measures which the Member States are required to implement in order to bring about completion of the internal market in electricity (see citiworks , paragraphs 43 and 44).
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36. Thus, according to settled case-law, the derogation for which that article provides must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Reyners , paragraph 45; Case C‑42/92 Thijssen [1993] ECR I‑4047, paragraph 8; and Case C‑283/99 Commission v Italy [2001] ECR I‑4363, paragraph 20), which excludes from being regarded as ‘connected with the exercise of official authority’, within the meaning of that derogation, functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision ( Thijssen , paragraph 22; Commission v Austria , paragraph 36; and Commission v Germany , paragraph 38).
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34. As is clear from paragraphs 243 and 312 of Dansk Rørindustri and Others v Commission , differentiation in the starting amounts of the fine on the basis of criteria other than the relevant turnover is permitted.
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312. As the Court of First Instance correctly held, in particular at paragraph 442 of the judgment in HFB and Others v Commission and paragraph 278 of the judgment in LR AF 1998 v Commission , it follows from the principles set out at paragraphs 240 to 243 of this judgment that the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their relevant turnover.
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23 A regulation based on Article 113 of the Treaty, whose objective is to implement the principle of free exportation at the Community level, as stated in Article 1 of the Export Regulation, cannot exclude from its scope measures adopted by the Member States whose effect is equivalent to a quantitative restriction where their application may lead, as in the present case, to an export prohibition.
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33. Article 6(b) of Directive 2003/88 therefore requires the Member States to take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers, the average working time for each seven-day period, including overtime, does not exceed 48 hours. That maximum limit on average weekly working time constitutes a rule of European Union social law of particular importance from which every worker must benefit as a minimum requirement intended to ensure protection of his safety and health (see Pfeiffer and Others , paragraph 100; Dellas and Others , paragraph 49; and Commission v United Kingdom , paragraph 38).
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100. In those circumstances, it must be concluded that, in view of both the wording of Article 6(2) of Directive 93/104 and the purpose and scheme of the directive, the 48-hour upper limit on average weekly working time, including overtime, constitutes a rule of Community social law of particular importance from which every worker must benefit, since it is a minimum requirement necessary to ensure protection of his safety and health (see, by analogy, Case C‑173/99 BECTU [2001] ECR I-4881, paragraphs 43 and 47), and therefore national legislation, such as that at issue in the main proceedings, which authorises weekly working time in excess of 48 hours, including periods of duty time (‘Arbeitsbereitschaft’), is not compatible with the requirements of Article 6(2) of the directive.
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63. In applying those principles, the undertaking in question can be viewed as carrying out the essential part of its activities with the controlling authority within the meaning of Teckal only if that undertaking’s activities are devoted principally to that authority and any other activities are only of marginal significance.
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36. It should be borne in mind that the definition of ‘regulated profession’ within the meaning of Directive 2005/36 is a matter of EU law (see judgments in Rubino , C‑586/08, EU:C:2009:801, paragraph 23 and Peňarroja Fa , C‑372/09 and C‑373/09, EU:C:2011:156, paragraph 27).
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27. It should first of all be pointed out that the definition of ‘regulated profession’ is a matter of EU law (see Case C‑586/08 Rubino [2009] ECR I‑0000, paragraph 23 and the case-law cited).
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13 ALL THE PROVISIONS OF THE CONVENTION , BOTH THOSE CONTAINED IN TITLE II ON JURISDICTION AND THOSE CONTAINED IN TITLE III ON RECOGNITION AND ENFORCEMENT , EXPRESS THE INTENTION TO ENSURE THAT , WITHIN THE SCOPE OF THE OBJECTIVES OF THE CONVENTION , PROCEEDINGS LEADING TO THE DELIVERY OF JUDICIAL DECISIONS TAKE PLACE IN SUCH A WAY THAT THE RIGHTS OF THE DEFENCE ARE OBSERVED . IT IS BECAUSE OF THE GUARANTEES GIVEN TO THE DEFENDANT IN THE ORIGINAL PROCEEDINGS THAT THE CONVENTION , IN TITLE III , IS VERY LIBERAL IN REGARD TO RECOGNITION AND ENFORCEMENT . IN THE LIGHT OF THESE CONSIDERATIONS IT IS CLEAR THAT THE CONVENTION IS FUNDAMENTALLY CONCERNED WITH JUDICIAL DECISIONS WHICH , BEFORE THE RECOGNITION AND ENFORCEMENT OF THEM ARE SOUGHT IN A STATE OTHER THAN THE STATE OF ORIGIN , HAVE BEEN , OR HAVE BEEN CAPABLE OF BEING , THE SUBJECT IN THAT STATE OF ORIGIN AND UNDER VARIOUS PROCEDURES , OF AN INQUIRY IN ADVERSARY PROCEEDINGS . IT CANNOT THEREFORE BE DEDUCED FROM THE GENERAL SCHEME OF THE CONVENTION THAT A FORMAL EXPRESSION OF INTENTION WAS NEEDED IN ORDER TO EXCLUDE JUDGMENTS OF THE TYPE IN QUESTION FROM RECOGNITION AND ENFORCEMENT .
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30
In that regard, it must be borne in mind that the Court has already recognised that the need to maintain the coherence of a tax system may justify a restriction on the exercise of the freedoms of movement guaranteed by the Treaty. However, in order for such justification to be accepted, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, the direct nature of that link falling to be examined in the light of the objective pursued by the legislation in question (judgments of 17 October 2013 in Welte, C‑181/12, EU:C:2013:662, paragraph 59, and of 7 November 2013 in K, C‑322/11, EU:C:2013:716, paragraphs 65 and 66 and the case-law cited).
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59. On this point, it should be recalled that the Court has indeed held that the need to preserve the coherence of a tax system may justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. However, for such a justification to be accepted, a direct link has to be established between the granting of the tax advantage concerned and the offsetting of that advantage by a particular tax (see Manninen , paragraph 42, and Case C‑182/08 Glaxo Wellcome [2009] ECR I‑8591, paragraphs 77 and 78).
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17 The French Republic' s action must be understood as being directed against the act whereby the Commission sought to conclude the Agreement. Consequently, the action is admissible.
Substance
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31 Finally, as regards specifically the last part of the question, the Court has consistently held that a limitation of the effects in time of an interpretative preliminary ruling can only be in the actual judgment ruling upon the interpretation sought (see, in particular, the judgment of 16 July 1992 in Case C-163/80 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625, paragraph 30). Consequently, if the Court had considered it necessary to impose a limit in time on the rule that the right to be a member of an occupational pension scheme is covered by Article 119, it would have done so in the Bilka judgment.
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43 In the light of those provisions, the Member States and the parties concerned were reasonably entitled to consider that Article 119 did not apply to pensions paid under contracted-out schemes and that derogations from the principle of equality between men and women were still permitted in that sphere .
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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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61. Consequently, national rules of this nature, which place a general prohibition on practices not referred to in Annex I to Directive 2005/29, without providing for an individual analysis as to whether the practices are ‘unfair’ in the light of the criteria laid down in Articles 5 to 9 of that directive, are not permitted under Article 4 thereof and run counter to the complete harmonisation objective pursued by that directive, even where they seek to achieve a higher level of consumer protection (see, to that effect, Plus Warenhandelsgesellschaft , EU:C:2010:12, paragraphs 41, 45 and 53).
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53. Although it is liable to restrict the scope of the prohibition laid down in that provision, the fact remains that, because of its limited and pre‑defined nature, such an exception cannot take the place of the analysis, which must of necessity be undertaken having regard to the facts of each particular case, of the ‘unfairness’ of a commercial practice in the light of the criteria set out in Articles 5 to 9 of the directive, where, as here in the main proceedings, that practice is not listed in Annex I thereto (see VTB-VAB and Galatea , paragraphs 64 and 65).
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47. The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem . That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.
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101. It is clear from the case-law of the Court that, since the freedom to provide services is one of the fundamental principles of the Community (see, inter alia, Case 220/83 Commission v France [1986] ECR 3663, paragraph 17, and Case 252/83 Commission v Denmark [1986] ECR 3713, paragraph 17), a restriction on that freedom is warranted only if it pursues a legitimate objective compatible with the Treaty and is justified by overriding reasons of public interest; if that is the case, it must be suitable for securing the attainment of the objective which it pursues and not go beyond what is necessary in order to attain it (Case C‑398/95 SETTG [1997] ECR I‑3091, paragraph 21; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 37, and Case C‑94/04 Cipolla [2006] ECR I‑11421, paragraph 61).
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21 The Court has consistently held that, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by overriding reasons relating to the general interest and which apply to all persons or undertakings pursuing an activity in the State of destination. In particular, the restrictions 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 (Säger, cited above, paragraph 15; Case C-288/89 Gouda and Others [1991] ECR I-407, paragraphs 13 to 15; Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32, and Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37).
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31. 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. Les changements intervenus par la suite ne sauraient être pris en compte par la Cour (arrêt du 25 octobre 2007, Commission/Grèce, C‑440/06, point 16).
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19. The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (see inter alia, to this effect, Case C-260/89 ERT [1991] I-2925, paragraph 42; Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 15; Case C-309/96 Annibaldi [2007] ECR I-7493, paragraph 13; Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25; Case C-349/07 Sopropé [2008] ECR I-10369, paragraph 34; Case C-256/11 Dereci and Others [2011] ECR I-11315, paragraph 72; and Case C-27/11 Vinkov [2012] ECR, paragraph 58).
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72. Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.
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87. Conformément à la jurisprudence de la Cour, l’obligation de motivation qui incombe au Tribunal n’impose pas à celui-ci de fournir un exposé qui suivrait, de manière exhaustive et un par un, tous les raisonnements articulés par les parties au litige, de sorte que la motivation peut être implicite à condition qu’elle permette aux intéressés de connaître les raisons pour lesquelles le Tribunal n’a pas fait droit à leurs arguments et à la Cour de disposer des éléments suffisants pour exercer son contrôle (voir en ce sens, notamment, arrêts Aalborg Portland e.a./Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P et C‑219/00 P, EU:C:2004:6, point 372, ainsi que FIAMM e.a./Conseil et Commission, C‑120/06 P et C‑121/06 P, EU:C:2008:476, point 96).
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74. Fourthly, it should be borne in mind that, where there is uncertainty as to the existence or extent of risks for public health, a Member State can take protective measures without having to wait until the reality of those risks becomes fully apparent ( Apothekerkammer des Saarlandes and Others , paragraph 30).
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30. It is important that, where there is uncertainty as to the existence or extent of risks to human health, a Member State should be able to take protective measures without having to wait until the reality of those risks becomes fully apparent. Furthermore, a Member State may take the measures that reduce, as far as possible, a public-health risk (see, to this effect, Case C-170/04 Rosengren and Others [2007] ECR I-4071, paragraph 49), including, more specifically, a risk to the reliability and quality of the provision of medicinal products to the public.
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34. Eu égard aux engagements de la République hellénique concernant la construction d’usines de transformation d’une capacité adaptée à ses besoins annuels de traitement des SPA, il y a lieu de rappeler que, selon une jurisprudence constante en matière d’établissement de plans de gestion des déchets, applicables par analogie à la présente affaire, l’obligation de posséder les infrastructures appropriées et d’adopter les mesures législatives et/ou administratives adéquates pour garantir la conformité au règlement SPA équivaut à une obligation de résultat. Ce résultat ne saurait être obtenu par des mesures se limitant à préparer l’élaboration d’un cadre réglementaire général, mais par des mesures garantissant sa réalisation substantielle et définitive (voir, en ce sens, arrêt du 2 mai 2002, Commission/France, C-292/99, Rec. p. I-4097, point 39).
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37
It must be recalled that the common flat-rate scheme for farmers is a scheme which derogates from and is an exception to the general scheme of the Sixth Directive and the VAT Directive and which must therefore be applied only to the extent necessary to achieve its objective (judgments of 15 July 2004, Harbs, C‑321/02, EU:C:2004:447, paragraph 27; of 26 May 2005, Stadt Sundern, C‑43/04, EU:C:2005:324, paragraph 27; and of 8 March 2012, Commission v Portugal, C‑524/10, EU:C:2012:129, paragraph 49).
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27. Turning next to the context in which those provisions are situated, the Court notes that they relate to a special scheme which is an exception to the general scheme under the Sixth Directive. It is settled case-law that any derogation from or exception to a general rule must be interpreted strictly (see, inter alia, Case C-399/93 Oude Luttikhuis and Others [1995] ECR I-4515, paragraph 23, and Case C-5/01 Belgium v Commission [2002] ECR I-11991, paragraph 56). Like the other special schemes provided for in the Sixth Directive, the scheme under Article 25 must therefore be applied only to the extent necessary to achieve its objective (see Harbs , paragraph 27).
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39. The concept must, however, be construed in a uniform manner at Community level, in order to ensure consistent application in the Member States.
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35. Article 29 of Directive 2001/14 provides for the adoption of the measures necessary to address a situation in which train movements have been disrupted as a result of technical failure or accident and, where absolutely necessary, an emergency on account of a breakdown making the infrastructure temporarily unusable ( Commission v Hungary , paragraph 57).
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57. Article 29 of Directive 2001/14 provides for the adoption of the measures necessary to address a situation in which train movements have been disrupted as a result of technical failure or accident and, where absolutely necessary, an emergency on account of a breakdown making the infrastructure temporarily unusable.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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30. The legal basis which has been used for the adoption of other European Union measures which might, in certain cases, display similar characteristics is irrelevant in that regard, as the legal basis for a measure must be determined having regard to its purpose and content (see judgment in United Kingdom v Council , EU:C:2014:97, paragraph 48 and the case-law cited). The Parliament cannot therefore base any argument on the fact that the contested Directive contains certain aspects which are identical to those set out in Part C of Annex I to Directive 98/83, which itself was based on Article 130 S(1) of the EC Treaty, now Article 192(1) TFEU.
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48. The legal basis which has been used for the adoption of other European Union measures which might, in certain cases, display similar characteristics is irrelevant in that regard, as the legal basis for a measure must be determined having regard to its own aim and content (see, to this effect, United Kingdom v Council , paragraph 67 and the case-law cited). It is therefore necessary to reject from the outset the argument put forward by the United Kingdom that Article 79(2)(b) TFEU has already been the legal basis for measures adopted in the field of social security that apply to third-country nationals.
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25 As regards Articles 3a, 102a and 103 of the Treaty, which refer to economic policy, the implementation of which must comply with the principle of an open market economy with free competition (Articles 3a and 102a), those provisions do not impose on the Member States clear and unconditional obligations which may be relied on by individuals before the national courts. What is involved is a general principle whose application calls for complex economic assessments which are a matter for the legislature or the national administration.
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25 Having regard to similar circumstances, in paragraphs 43 and 25 respectively of Dorsch Consult and Tögel, cited above, the Court stated that the Member States' obligation arising from a directive to achieve the result prescribed by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It followed that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (see the judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).
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43 That being the case, it must be reiterated first of all that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It follows that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (see the judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).
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31. Toutefois, les conditions que doit remplir une mesure pour relever de la notion d’«aide» au sens de l’article 107 TFUE ne sont pas satisfaites si l’entreprise bénéficiaire pouvait obtenir le même avantage que celui qui a été mis à sa disposition au moyen de ressources d’État dans des circonstances qui correspondent aux conditions normales du marché (arrêts du 5 juin 2012, Commission/EDF, C‑124/10 P, non encore publié au Recueil, point 78 et jurisprudence citée, ainsi que du 24 janvier 2013, Frucona Košice/Commission, C-73/11 P, non encore publié au Recueil, point 70).
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57. Moreover, it is settled-case law that the mere fact that an act of the European Union is liable to have implications for international trade is not enough for it to be concluded that the act must be classified as falling within the common commercial policy. On the other hand, an EU act falls within that policy if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade (see, inter alia, Daiichi Sankyo and Sanofi-Aventis Deutschland , paragraph 51 and the case-law cited).
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51. It is also common ground that the mere fact that an act of the European Union, such as an agreement concluded by it, is liable to have implications for international trade is not enough for it to be concluded that the act must be classified as falling within the common commercial policy. On the other hand, a European Union act falls within the common commercial policy if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade (Opinion 2/00 [2001] ECR I‑9713, paragraph 40; Case C‑347/03 Regione autonoma Friuli-Venezia Giulia and ERSA [2005] ECR I‑3785, paragraph 75; and Case C‑411/06 Commission v Parliament and Council [2009] ECR I‑7585, paragraph 71).
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26. En tout état de cause, il y a lieu de rappeler qu’il ressort d’une jurisprudence établie qu’une fois qu’une discrimination en matière de rémunération a été constatée par la Cour et aussi longtemps que des mesures rétablissant l’égalité de traitement n’ont pas été adoptées par le régime en cause, le respect de l’article 141 CE ne saurait être assuré que par l’octroi aux personnes de la catégorie défavorisée des mêmes avantages que ceux dont bénéficient les personnes de la catégorie privilégiée (voir, notamment, arrêt du 17 avril 1997, Evrenopoulos, C‑147/95, Rec. p. I‑2057, point 42).
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30. It should first be noted that it is settled case-law that the first sentence of Article 221(3) of the Customs Code lays down a limitation rule whereby the communication of the amount of import or export duty due is not to take place after the expiry of a period of three years from the date on which the customs debt was incurred (see, to that effect, Case C‑201/04 Molenbergnatie [2006] ECR I‑2049, paragraph 39, and Joined Cases C‑124/08 and C‑125/08 Snauwaert and Others [2009] ECR I-0000, paragraph 28).
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39. It is beyond question that expiry of the three-year period laid down in Article 221(3) of the Customs Code, for the customs authorities to notify the debtor of the amount of the customs debt, is a bar on the right of those authorities to recover the debt, unless it is as a result of an act that could give rise to criminal court proceedings that the customs authorities were unable to determine the exact amount legally due. However, the provision at issue at the same time enacts a rule governing the customs debt itself, and thus establishes a rule on limitation in respect of the debt.
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26. An action for annulment must be available in the case of all measures adopted by the EU institutions, irrespective of their nature or form, provided that they are intended to have legal effects (see judgment in Commission v Council , C‑28/12, EU:C:2015:282, paragraph 14 and the case-law cited).
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41 As regards the plea alleging infringement of the principle of institutional balance, suffice it to say that, in so far as the decision at issue is one of the acts which the Council is empowered to adopt by virtue of its power of internal organization, the fact that it did not involve the Parliament in its adoption cannot detract from the Parliament' s prerogatives, which include participation, where provided for in the Treaties, in the process of the drafting of legislative measures (see, in particular, Case C-70/88 Parliament v Council [1990] ECR I-2041, paragraphs 21 and 28).
Article 22 of the Council' s Rules of Procedure
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21 Those prerogatives are one of the elements of the institutional balance created by the Treaties . The Treaties set up a system for distributing powers among the different Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community .
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41. Next, as regards freedom to provide services, first, the letting of immovable property must be considered to be a provision of services for remuneration within the meaning of the first paragraph of Article 50 EC (see, to that effect, Case C‑70/09 Hengartner and Gasser [2010] ECR I‑0000, paragraph 32). Second, the fact that Ms Schmelz has been letting an apartment, located in Austria, for a number of years does not preclude Article 49 EC from being applicable.
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45. As a result, Articles 39 EC and 43 EC militate against any national measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by Community nationals of the fundamental freedoms guaranteed by the Treaty (see, to that effect, Case C‑19/92 Kraus [1993] ECR I‑1663, paragraph 32; Case C‑285/01 Burbaud [2003] ECR I‑8219, paragraph 95, and Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11).
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95. According to settled case-law, any national measure which, although applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by a national of a Member State of the freedom of movement of workers, is an obstacle to that fundamental freedom guaranteed by the Treaty (see, to that effect, Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32).
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53. Accordingly, it is appropriate to examine, first, whether the measures reducing the tax rates in question are selective in nature and, if necessary, to examine whether, as the Portuguese Government submits, those measures are justified by the nature and overall structure of the Portuguese tax system.
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109
Similarly, commenting on national support schemes that use the mechanism of what are known as ‘green certificates’, the Court observed that the obligation for electricity suppliers to obtain a quota of such certificates from green electricity producers was designed in particular to guarantee those producers a demand for the certificates they have been awarded and in that way to facilitate the sale of the green energy that they produce at a price higher than the market price for conventional energy. The Court also pointed out in that regard that the effect of that scheme in terms of offering an incentive for electricity producers in general to increase their production of green electricity did not appear to be open to doubt; nor, consequently, did it appear possible to call in question the ability of that scheme to attain the legitimate objective pursued in the circumstances of the case (see judgment of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraphs 109 and 110 and the case-law cited).
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109. Secondly, it must be noted that, unlike, for example, investment aid, the purpose of this type of scheme is to support the operation of installations producing green electricity once they become active. In that regard, the quota obligation is designed in particular to guarantee green electricity producers a demand for the certificates they have been awarded and in that way to facilitate the sale of the green energy that they produce at a price higher than the market price for conventional energy.
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35. It must also be recalled that, within the framework of proceedings under Article 267 TFEU, the Court cannot resolve a dispute concerning the facts. Such a dispute, like any other assessment of the facts involved, is within the province of the national court (judgment in CEPSA , C‑279/06, EU:C:2008:485, paragraph 30 and the case-law cited).
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87. Ainsi, les propositions de la Commission ne sauraient lier la Cour et ne constituent qu’une base de référence utile. De même, des lignes directrices telles que celles contenues dans les communications de la Commission ne lient pas la Cour, mais contribuent à garantir la transparence, la prévisibilité et la sécurité juridique de l’action menée par cette institution (arrêt Commission/Grèce, C‑369/07, EU:C:2009:428, point 112 et jurisprudence citée).
Sur l’astreinte
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112. Accordingly, the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference. Similarly, guidelines such as those contained in the communications of the Commission are not binding on the Court but contribute to ensuring that the action brought by that institution is transparent, foreseeable and consistent with legal certainty (see Commission v Portugal , paragraph 34).
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55. However, neither Dir ective 2003/9 nor Directive 2005/85 carries out, at the present stage, a harmonisation of the grounds on which the detention of an asylum seeker may be ordered. As the German Government pointed out, the proposal of an exhaustive list setting out those grounds was abandoned during the negotiations which preceded the adoption of Directive 2005/85 and it is only in the context of the recasting of Directive 2003/9, which is in the process of being adopted, that such a list is intended to be established at European Union level.
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160. Therefore, where abuse of successive fixed-term contracts has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to punish that abuse and nullify the consequences of the breach of Community law. According to the very wording of the first paragraph of Article 2 of Directive 1999/70, the Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [the] directive’ ( Adeneler and Others , paragraph 102; Marrosu and Sardino , paragraph 53; and Vassallo , paragraph 38; also order in Vassilakis and Others , paragraph 127).
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38. Therefore, where abuse of successive fixed-term contracts has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to punish that abuse and nullify the consequences of the breach of Community law. According to the very wording of the first paragraph of Article 2 of Directive 1999/70, the Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [the] directive’ ( Adeneler and Others , paragraph 102).
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41 In the interests of the owner as proprietor of the trade mark, and to protect him against any misuse, those rights must therefore, as the Court held in Hoffmann-La Roche, be recognized only in so far as the importer complies with a number of other requirements.
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6 That 60% rule, too, was declared invalid by the Court for being in breach of the principle of the protection of legitimate expectations on the ground that the application to the producers covered by Article 3a of Regulation No 857/84, as amended, of a reduction of 40% which, far from being representative of the rates applicable to the producers covered by Article 2, was more than double the highest total of such rates, must be regarded as a restriction which specifically affected the first-mentioned category of producers by very reason of their undertaking as to non-marketing or conversion (judgments of 11 December 1990 in Case C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539, paragraphs 24 and 29, and in Case C-217/89 Pastaetter v Hauptzollamt Bad Reichenhall [1990] ECR I-4585, paragraphs 15 and 20).
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20 It follows that the contested 60% rule detracts from the legitimate expectations which the producers concerned were entitled to entertain as to the limited nature of their undertakings . The contested provision must therefore be declared void for breach of the principle of the protection of legitimate expectations, and it is unnecessary therefore to consider the other arguments concerning its validity put forward in the course of the proceedings .
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18 The reply to be given to the national court must therefore be that a charge, proportional to the customs value of goods, levied by a Member State on goods imported from another Member State by reason of their entry into a region of the territory of the first Member State constitutes a charge having an effect equivalent to a customs duty on imports, notwithstanding the fact that the charge is also imposed on goods entering that region from another part of the same State.
Applicability of the free-trade agreement in force between the Community and Sweden (third question of the national court)
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61. As the Court has held on a number of occasions, citizens of the Union lawfully resident in the territory of a host Member State can rely on Article 6 of the Treaty in all situations which fall within the scope ratione materiae of Community law. Citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (see, in particular, Grzelczyk , cited above, paragraphs 31 and 32, and Case C-148/02 Garcia Avello [2003] ECR I-0000, paragraphs 22 and 23).
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23. That status enables nationals of the Member States who find themselves in the same situation to enjoy within the scope ratione materiae of the EC Treaty the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (see, in particular, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31, and D'Hoop , cited above, paragraph 28).
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57. In those circumstances, these infringement proceedings, within the limits thus defined, may be declared admissible. On the other hand, in so far as it relates to 2005 and the period following 2007, the action must be dismissed as inadmissible.
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40. However, bearing in mind the wide variety of situations in which a Member State may put forward such reasons, it cannot be necessary for all the justifications referred to in paragraph 51 of the Marks & Spencer judgment to be present in order for national tax rules which restrict the freedom of establishment laid down in Article 43 EC to be capable, in principle, of being justified.
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51. In the light of those three justifications, taken together, it must be observed that restrictive provisions such as those at issue in the main proceedings pursue legitimate objectives which are compatible with the Treaty and constitute overriding reasons in the public interest and that they are apt to ensure the attainment of those objectives.
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54. The five-year limitation period referred to in that provision cannot begin to run until all the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, until the damage to be made good has materialised. Therefore, in cases where, as in this instance, the liability of the Community has its origin in a legislative measure, that period of limitation does not begin until the damaging effects of that measure have arisen and, therefore, until the time at which the persons concerned were bound to have suffered certain damage (see, in particular, Joined Cases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others v Council and Commission [1982] ECR 85, paragraph 10, and Case C-282/05 P Holcim (Deutschland) v Commission [2007] ECR I‑2941, paragraph 29).
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24. It is for the national courts to interpret those rules having regard for the principle of legal certainty, which is one of the objectives of Regulation No 44/2001 (see, in relation to the Brussels Convention, Case C-440/97 GIE Groupe Concorde and Others [1999] ECR I-6307, paragraph 23; Case C-256/00 Besix [2002] ECR I-1699, paragraph 24; and Case C-281/02 Owusu [2005] ECR I-1383, paragraph 38).
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24 As the referring court itself points out, the Court has repeatedly held that the principle of legal certainty is one of the objectives of the Brussels Convention (Case 38/81 Effer [1982] ECR 825, paragraph 6; Case C-26/91 Handte [1992] ECR I-3967, paragraphs 11, 12, 18 and 19; Case C-129/92 Owens Bank [1994] ECR I-117, paragraph 32; Case C-288/92 Custom Made Commercial [1994] ECR I-2913, paragraph 18; and Case C-440/97 GIE Groupe Concorde and Others [1999] ECR I-6307, paragraph 23).
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43. In that context, the European Union legislature took the view that the abolition of controls on the possession of weapons at intra-Community frontiers necessitated the adoption of effective rules enabling controls to be carried out within Member States on the acquisition and possession of firearms and on their transfer to another Member State.
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205. Finally, in light of the line of argument put forward by the Republic of Austria as to the need to authorise hunting of capercaillie and black grouse so that the hunters may conserve and maintain their habitat, it is to be observed that while the protection of flora is admittedly one of the grounds of derogation set out in the fourth indent of Article 9(1)(a) of the Directive, protection of that habitat can be ensured regardless of hunting (see, to this effect, Commission v Finland , paragraphs 35 and 40).
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35. As regards eider, the Court notes that it is apparent from the ornithological study carried out by the Riista ja kalatalouden tutkimuslaitos (Institute for the Study of Game and Fishing), referred to by the parties (‘the study’), that a not inconsiderable number of specimens of that species is present in the spring hunting territories from early autumn onwards. As to the Finnish Government’s assertion that the individuals of that species present in the autumn in those territories are females or chicks born that year, that assertion is not supported by any evidence, as the Finnish Government moreover acknowledges. Lastly, although it is true that hunters perform a useful function in environmental management, by hunting small predators in the spring so that the eider’s rearing can produce better results, it is not apparent that that function can be fulfilled only if the eider hunting season is open in the spring.
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44. It is a requirement of the principles of legal certainty and of transparency that migrant workers and their family members should have the benefit of a clear precise legal situation enabling them to ascertain not only the full extent of their rights but also, as the case may be, the limitations of those rights (see, by analogy, judgment in Altmark Trans and Regierungspräsidium Magdeburg , C‑280/00, EU:C:2003:415, paragraphs 58 and 59).
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63
As regards the consequences of such an incompatibility, it must be recalled that a Member State may not apply a criminal penalty for failure to complete an administrative formality where such completion has been refused or rendered impossible by the Member State concerned, in infringement of EU law (see judgments in Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 69; Stoß and Others, C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504, paragraph 115; and Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 43).
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115. Having regard to the information provided by the Verwaltungsgericht Gießen and set out in paragraph 19 of this judgment, it should also be noted that, according to consistent case-law, a Member State may not apply a criminal penalty for failure to complete an administrative formality where such completion has been refused or rendered impossible by the Member State concerned, in infringement of EU law ( Placanica and Others , paragraph 69).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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35. In that regard, it should be borne in mind that, according to settled case-law (see, inter alia, Brasserie du Pêcheur and Factortame , paragraph 51; Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 25; and Case C-278/05 Robins and Others [2007] ECR I-1053, paragraph 69), for a Member State to incur liability for damage caused to individuals by a breach of Community law it is necessary that:
– the rule of law infringed should be intended to confer rights on individuals;
– the breach should be sufficiently serious;
– there should be a direct causal link between the breach of the obligation incumbent on the State and the damage sustained by the injured parties.
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69. According to settled case-law (see, in particular, Brasserie du Pêcheur and Factortame , paragraph 51; Hedley Lomas , paragraph 25; Case C-424/97 Haim [2000] ECR I‑5123, paragraph 36; and Case C-63/01 Evans [2003] ECR I‑14447, paragraph 83), for a Member State to incur liability for damage caused to individuals by a breach of Community law it is necessary that:
– the rule of law infringed should be intended to confer rights on individuals;
– the breach should be sufficiently serious;
– there should be a direct causal link between the breach of the obligation incumbent on the State and the damage sustained by the injured parties.
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77. It needs to be examined whether, in such circumstances, as the Commission argues, the tax legislation in question constitutes an obstacle to the freedom to provide services.
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19
It is settled case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, judgments of 15 June 2000, Sehrer, C‑302/98, EU:C:2000:322, paragraph 20, and 25 October 2012, Folien Fischer and Fofitec, C‑133/11, EU:C:2012:664, paragraph 25).
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20 It is settled case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, in particular, Case C-254/98 TK-Heimdienst v Schutzverband gegen unlauteren Wettbewerb [2000] ECR I-151, paragraph 13).
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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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39
In that regard, it should be noted that in interpreting a provision of EU law, it is necessary, in accordance with established case-law, to consider not only its wording but also its context and the aims pursued by the legislation of which it forms part (see, inter alia, judgments of 1 April 1993, Findling Wälzlager, C‑136/91, EU:C:1993:133, paragraph 11, and 4 February 2016, Hassan, C‑163/15, EU:C:2016:71, paragraph 19). The origins of a provision of EU law may also provide information relevant to its interpretation (see judgments of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 135, and 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 50).
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135. It is apparent from the preparatory work relating to the Treaty of Maastricht that the aim of Article 125 TFEU is to ensure that the Member States follow a sound budgetary policy (see Draft treaty amending the Treaty establishing the European Economic Community with a view to achieving economic and monetary union, Bulletin of the European Communities , Supplement 2/91, pp. 24 and 54). The prohibition laid down in Article 125 TFEU ensures that the Member States remain subject to the logic of the market when they enter into debt, since that ought to prompt them to maintain budgetary discipline. Compliance with such discipline contributes at Union level to the attainment of a higher objective, namely maintaining the financial stability of the monetary union.
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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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36. According to the case-law of the Court, the classification of a benefit in the general scheme of Regulation No 1408/71 is based essentially on the constituent elements of that benefit, in particular its purposes and the conditions on which it is granted, and not on the classification which is made by the national legislation (see, by analogy with the distinction between benefits excluded from the scope of Regulation No 1408/71 and benefits which fall within it, inter alia, Case 9/78 Directeur régional de la Sécurité sociale de Nancy [1978] ECR 1661, paragraph 12; Case C‑160/96 Molenaar [1998] ECR I‑843, paragraph 19; and Case C‑177/12 Lachheb [2013] ECR, paragraph 28).
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19 On this point, it must be recalled that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within it is based essentially on the constituent elements of each particular benefit, in particular its purpose and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation (Case C-78/91 Hughes [1992] ECR I-4839, paragraph 14).
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90. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings.
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32
According to settled case-law of the Court, it is apparent from both its title, preamble, content and purpose that Directive 2000/78 seeks to lay down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include age (see, inter alia, judgments of 16 October 2007 in Palacios de la Villa, C‑411/05, EU:C:2007:604, paragraph 42; of 13 September 2011 in Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 39; and of 13 November 2014 in Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 28).
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28. It should be observed at the outset that it is apparent from both its title, preamble, content and purpose that Directive 2000/78 seeks to lay down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include age (judgments in Hütter , C‑88/08, EU:C:2009:381, paragraph 33, and Georgiev , C‑250/09 and C‑268/09, EU:C:2010:699, paragraph 26).
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69. However, in the absence, inter alia, of an international agreement to that effect, only certificates awarded under the national scheme can be used to meet that obligation. Accordingly, those suppliers and consumers are as a rule required, on the basis of the electricity that they import, to purchase such certificates, failing which they have to pay a specific fee.
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59. That prohibition deprives lawyers established in a Member State other than the Italian Republic of the possibility, by requesting fees lower than those set by the scale, of competing more effectively with lawyers established on a stable basis in the Member State concerned and who therefore have greater opportunities for winning clients than lawyers established abroad (see, by analogy, Case C-442/02 CaixaBank France [2004] ECR I-8961, paragraph 13).
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13. That prohibition hinders credit institutions which are subsidiaries of foreign companies in raising capital from the public, by depriving them of the possibility of competing more effectively, by paying remuneration on sight accounts, with the credit institutions traditionally established in the Member State of establishment, which have an extensive network of branches and therefore greater opportunities than those subsidiaries for raising capital from the public.
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46. Consequently, it is not possible to uphold the Commission’s arguments that, having regard to the context of Article 11 of the VAT Directive, that article must be interpreted as meaning that non-taxable persons cannot be included in a VAT group.
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21. Those opportunities could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles placed in the way of his stay in the host Member State by legislation in his State of origin penalising the fact that he has used them ( Pusa , paragraph 19).
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19. Those opportunities could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles raised to his residence in the host Member State by legislation of his State of origin penalising the fact that he has used them (see, by analogy, D’Hoop , paragraph 31).
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92 Developments in the case-law or in the economic context cannot in themselves render new hearings necessary, any more than if they occur in the course of administrative proceedings prior to a final decision.
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46. According to settled case-law of the Court, the adoption of the essential rules of a matter such as that at issue in the present case is reserved to the EU legislature, and those rules must be laid down in the basic legislation. It follows that the provisions laying down the essential elements of the basic legislation, the adoption of which requires political choices falling within the responsibilities of the EU legislature, cannot be delegated or appear in implementing acts (see, to that effect, judgment in Parliament v Council , C‑355/10, EU:C:2012:516, paragraphs 64 to 66).
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64. According to settled case-law, the adoption of rules essential to the subject-matter envisaged is reserved to the legislature of the European Union (see, to that effect, Germany v Commission , paragraph 36; Case C-104/97 P Atlanta v European Community [1999] ECR I-6983, paragraph 76; and C-356/97 Molkereigenossenschaft Wiedergeltingen [2000] ECR I-5461, paragraph 21). The essential rules governing the matter in question must be laid down in the basic legislation and may not be delegated (see, to that effect, Case C-156/93 Parliament v Commission [1995] ECR I-2019, paragraph 18; Parliament v Council , paragraph 23; Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 34; and Case C-133/06 Parliament v Council [2008] ECR I-3189, paragraph 45).
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31
Thus, it can be seen from Article 7(1)(c) of Directive 2003/86 that the wording of that provision cannot be interpreted as precluding the competent authority of the Member State concerned by an application for family reunification from examining whether the condition relating to the sponsor’s resources is met by taking into account an assessment as regards whether those resources will be retained beyond the date of submission of that application.
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42. In certain circumstances, the relationship between a principal and his agent may be characterised by such economic unity (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 480).
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480 IN FACT, IF SUCH AN AGENT WORKS FOR THE BENEFIT OF HIS PRINCIPAL HE MAY IN PRINCIPLE BE TREATED AS AN AUXILIARY ORGAN FORMING AN INTEGRAL PART OF THE LATTER'S UNDERTAKING, WHO MUST CARRY OUT HIS PRINCIPAL'S INSTRUCTIONS AND THUS, LIKE A COMMERCIAL EMPLOYEE, FORMS AN ECONOMIC UNIT WITH THIS UNDERTAKING .
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17. In order for such a difference in treatment to be compatible with the provisions of the EC Treaty on the freedom of establishment, it must relate to situations which are not objectively comparable or be justified by an overriding reason in the public interest (see, to that effect, Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 167). The comparability of a Community situation with an internal situation must be examined having regard to the aim pursued by the national provisions at issue (Case C-337/08 X Holding [2010] ECR I-1215, paragraph 22).
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33. It should be recalled, first, that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see the order of 4 February 2000 in Case C-17/98 Emesa Sugar [2000] ECR I‑665, paragraph 18; Case C-210/03 Swedish Match [2004] ECR I‑11893, paragraph 25; and Case 138/05 Stichting Zuid-Hollandse Milieufederatie [2006] ECR I-8339, paragraph 23).
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18 In the seventh recital in the preamble to Decision 97/803, which followed that proposal, the Council observes that it is appropriate for fresh disruption [to] be avoided by taking measures to create a framework conducive to regular trade flows and at the same time compatible with the common agricultural policy.
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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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16 First, passenger transport must, in principle, be subject to VAT as regards parts of a journey carried out within territorial waters. It may be exempted from that tax only on the basis of the derogation provisions of the Sixth Directive, such as Article 28(3)(b). The Hellenic Republic cannot effectively rely on the fact that other Member States exempt those transport operations from VAT without authorization to do so in order not to apply the provisions of the Sixth Directive correctly (see, to that effect, Case C-146/89 Commission v United Kingdom [1991] ECR I-3533, paragraph 47).
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47 It must first be pointed out in this regard that, according to the well established case-law of the Court (see in particular the judgment of 26 February 1976 in Case 52/75 Commission v Italy [1976] ECR 277), a Member State cannot justify its failure to fulfil obligations under the Treaty by pointing to the fact that other Member States have also failed, and continue to fail, to fulfil their own obligations. Under the legal order established by the Treaty, the implementation of Community law by Member States cannot be made subject to a condition of reciprocity. Articles 169 and 170 of the Treaty provide suitable means of redress for dealing with the failure by Member States to fulfil their obligations under the Treaty.
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64. In those circumstances, it must be held that the corrected figures do not call into question the overall conclusion reached, following an examination of all the economic indicators, by the EU institutions, with the result that the EU institutions were correct in establishing the existence of injury to the Union industry and the causal link between the imports and the injury.
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47
Furthermore, as regards whether the works were communicated to a ‘new’ public, within the meaning of the case-law cited in paragraph 33 above, it should be noted that the Court, in its judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 24 and 31) and in its order of 21 October 2014, BestWater International (C‑348/13, EU:C:2014:2315), held that such a public is a public which was not taken into account by the copyright holders when they authorised the initial communication. In its judgment of 8 September 2016, GS Media (C‑160/15, EU:C:2016:644, paragraph 43), the Court observed that those decisions confirmed the importance of the consent of the holder of the copyright in protected works that have been made freely available on a website, having regard to Article 3(1) of Directive 2001/29 which specifically provides that every act of communication of a work to the public must be authorised by the copyright holder.
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31. On the other hand, where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation.
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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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40. It must first of all be stated that, in view of the objective character of the term ‘economic activities’, the fact that the activity of the public offices consists in the performance of duties which are conferred and regulated by law, in the public interest and without any business or commercial objective, is in that regard irrelevant. Indeed, Article 6 of the Sixth Directive expressly provides that certain activities carried on in pursuance of the law are to be subject to the system of VAT ( Commission v Netherlands , paragraph 10, Commission v Greece , paragraph 28).
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28 In view of the objective character of the term economic activities, the fact that the activity in question consists in the performance of duties which are conferred and regulated by law in the public interest is irrelevant. Indeed, Article 6 of the Sixth Directive expressly provides that certain activities carried on in pursuance of the law are to be subject to the system of VAT (Commission v Netherlands, cited above, paragraph 10).
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32 In this case, the parties agree that Regulation No 2078/92 simultaneously pursued objectives of agricultural policy and environmental protection.
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28 As is clear from paragraphs 32 to 34 of Kuusijärvi, the purpose of Article 13(2)(f) of Regulation No 1408/71 is precisely to ensure that a person covered by that regulation is always subject to the social security legislation of a Member State.
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32 However, the fact that the legislation of a Member State makes the right of a person who has ceased all occupational activity in its territory, and who thus no longer satisfies the conditions laid down in Article 13(2)(a) of Regulation No 1408/71, to be or to remain affiliated to that Member State's social security scheme conditional upon his residing in its territory is not such as to deprive Article 13(2)(f) of the regulation of its practical effect or to exclude that person from the application of all social security legislation, in particular that applicable by virtue of Regulation No 1408/71.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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52. As Community law stands, so long as harmonisation of the measures necessary to ensure the protection of health is not more complete, it is difficult to avoid the existence of differences in the classification of products as between Member States in the context of Directive 65/65 (see, inter alia, Case C-201/96 LTM [1997] ECR I-6147, paragraph 24, and Case C-270/96 Laboratoires Sarget [1998] ECR I-1121, paragraph 23).
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24 The concept of a pharmaceutical product in the CN is distinct from that of a medicinal product appearing in Directive 65/65. The latter directive is designed to eliminate - at least in part - obstacles to trade in proprietary medicinal products within the Community whilst at the same time attaining the essential objective of safeguarding public health (Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 14). Thus, with a view to promoting trade and at the same time protecting public health, the directive allows a relatively large spectrum of products to be covered by the control system laid down in the legislation on medicinal products. It should also be noted that, in Case C-369/88 Delattre [1991] ECR I-1487, paragraphs 27 and 29, the Court held that, with regard to Directive 65/65, the fact that a product is classified as a foodstuff in another Member State cannot prevent its being classified as a medicinal product in the Member State concerned when it displays the characteristics of such a product. The Court also recognized in that case that, so long as harmonization of the measures necessary to ensure the protection of health is not more complete, differences in the classification of products as between Member States will continue to exist in the context of the directive.
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49. Accordingly, since that system enables the persons liable to pay compensation to pass on the cost of the levy to private users and that, therefore, the latter assume the burden of the private copying levy, it must be regarded as consistent with a ‘fair balance’ between the interests of authors and those of the users of the protected subject-matter.
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24. As regards, first, the wording of the questions referred for a preliminary ruling, it must first of all be recalled that in proceedings brought under Article 234 EC the Court has no jurisdiction to apply the rules of Community law to a specific case nor, consequently, to classify provisions of national law with respect to such a rule. It may, however, provide the national court with all the criteria for the interpretation of Community law which might be useful in assessing the effects of such provisions of national law (see, to that effect, Case 37/86 Coenen [1987] ECR 3589, paragraph 8, and Joined Cases C‑145/06 and C‑146/06 Fendt Italiana [2007] ECR I‑5869, paragraph 30). To that end, the Court may have to reformulate the questions referred to it (see, in particular, Case C‑45/06 Campina [2007] ECR I‑2089, paragraph 30, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 46).
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30. As the Commission has rightly pointed out, it is not for the Court, in the context of the procedure provided for in Article 234 EC, to determine whether national provisions are compatible with Community law. However, the Court may provide the national court with all the criteria for the interpretation of Community law which may enable it to assess whether those provisions are so compatible in order to give judgment in the proceedings before it (see, inter alia, Case C‑346/97 Braathens [1999] ECR I‑3419, paragraph 14).
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Ainsi que la Cour l’a jugé, il découle du libellé de cette disposition que, en règle générale et sauf disposition contraire, la présentation de faits et de preuves par les parties demeure possible après l’expiration des délais auxquels se trouve subordonnée une telle présentation en application des dispositions du règlement no 207/2009 et qu’il n’est nullement interdit à l’EUIPO, y compris ses chambres de recours, de tenir compte de faits et de preuves ainsi tardivement invoqués ou produits (arrêts du 13 mars 2007, OHMI/Kaul, C‑29/05 P, EU:C:2007:162, point 42 ; du 26 septembre 2013, Centrotherm Systemtechnik/OHMI et centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, point 77, ainsi que, en ce sens, arrêt du 3 octobre 2013, Rintisch/OHMI, C‑120/12 P, EU:C:2013:638, points 22 à 33).
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42. It must be pointed out that the application of Article 113 of the Rules of Procedure of the General Court does not guarantee that an oral procedure will be opened, as the General Court may, under Article 114(3) of its Rules of Procedure, to which Article 113 refers, give its decision following a solely written procedure (Case C‑547/03 P AIT v Commission [2006] ECR I‑845, paragraph 35, and Case C‑417/04 P Regione Siciliana [2006] ECR I‑3881, paragraph 37).
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37. It should, on the other hand, be noted that the application of Article 113 of the Rules of Procedure of the Court of First Instance does not guarantee that an oral procedure will take place, as the Court of First Instance may, under Article 114(3) of its Rules of Procedure, to which Article 113 of those rules refers, give judgment following a solely written procedure (Case C‑547/03 P AIT v Commission [2006] ECR I-0000, paragraph 35).It is apparent moreover from the contested order that the Court of First Instance had sufficient information on which to base its decision without hearing the oral arguments of the parties. It is apparent, finally, that the appellant presented its observations on the objection of inadmissibility in its reply.
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27 IT FOLLOWS THAT DIRECTIVE NO 77/187 MAY BE RELIED UPON ONLY BY PERSONS WHO ARE , IN ONE WAY OR ANOTHER , PROTECTED AS EMPLOYEES UNDER THE LAW OF THE MEMBER STATE CONCERNED . IF THEY ARE SO PROTECTED , THE DIRECTIVE ENSURES THAT THEIR RIGHTS ARISING FROM A CONTRACT OF EMPLOYMENT OR AN EMPLOYMENT RELATIONSHIP ARE NOT DIMINISHED AS A RESULT OF THE TRANSFER .
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71. It is for the national court to determine, in each case, whether that obligation has been complied with, taking account, where necessary, of the provisions of the DTC that that Member State has concluded with the State in which the shareholder company is resident (see, to that effect, Case C-265/04 Bouanich [2006] ECR I-923, paragraphs 51 to 55).
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53. In view of the fact that resident shareholders are taxed at the rate of 30% on share repurchase payments after deduction of the cost of acquisition, it must be ascertained whether those shareholders are treated more favourably than non-resident shareholders. In order to do this, it is necessary to know the cost of acquisition of those shares as well as their nominal value.
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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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23 The Court has consistently held (see, in particular, the abovementioned judgments in Rousseau Wilmot, paragraph 15; Bergandi, paragraph 15; Wisselink and Others, paragraph 18; and Giant, paragraph 12) that the principle of the common system of VAT consists, by virtue of Article 2 of the First Directive, in the application to goods and services up to the retail stage of a general tax on consumption which is exactly proportional to the price of the goods and services, irrespective of the number of transactions which take place in the production and distribution process before the stage at which the tax is charged. However, VAT is chargeable on each transaction only after deduction of the amount of VAT borne directly by the costs of the various price components. The procedure for deduction is so arranged by Article 17(2) of the Sixth Directive that taxable persons are authorised to deduct from the VAT for which they are liable the VAT which the goods or services have already borne.
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15 AS THE COURT EMPHASIZED IN ITS JUDGMENT OF 1 APRIL 1982 IN CASE 89/81 ( STAATSSECRETARIS VAN FINANCIEN V HONG KONG TRADE DEVELOPMENT COUNCIL (( 1982 )) ECR 1277 ), THE PRINCIPLE OF THE COMMON SYSTEM OF VAT CONSISTS, ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 2 OF THE FIRST DIRECTIVE, IN THE APPLICATION TO GOODS AND SERVICES OF A GENERAL TAX ON CONSUMPTION EXACTLY PROPORTIONAL TO THE PRICE OF THE GOODS AND SERVICES, WHATEVER THE NUMBER OF TRANSACTIONS WHICH TAKE PLACE IN THE PRODUCTION AND DISTRIBUTION PROCESS BEFORE THE FINAL STAGE AT WHICH TAX IS CHARGED .
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59. In the interests of transparency the Commission adopted the Guidelines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine.
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60. In the present case, the justification put forward by the Italian Republic relates to the need to ensure road safety, which, according to the case-law, constitutes an overriding reason relating to the public interest capable of justifying a hindrance to the free movement of goods (see, in particular, Case C‑55/93 van Schaik [1994] ECR I‑4837, paragraph 19; Case C‑314/98 Snellers [2000] ECR I‑8633, paragraph 55; Commission v Finland , paragraph 40, Commission v Netherlands , paragraph 77, Commission v Portugal , paragraph 38; and C‑170/07 Commission v Poland [2008] ECR I‑0000, paragraph 49).
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55 In that regard, it should be pointed out that it follows from settled case-law that restrictions on the free movement of goods within the meaning of Article 30 of the Treaty may be justified by imperative requirements such as road safety (see Case C-55/93 Van Schaik [1994] ECR I-4837) and protection of the environment (see Case C-341/95 Bettati [1998] ECR I-4355, paragraph 62), and that it cannot be precluded that national rules which define criteria for the determination of the date on which a vehicle was first authorised for use on the public highway, such as the regulation, may be justified. It is for the national court to ascertain whether that is actually so in the case before it.
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54. The first condition requires the treatment in question to be among the benefits provided for by the legislation of the Member State on whose territory the insured person resides, whereas the second condition requires that the treatment which the latter plans to undergo in a Member State other than that on the territory of which he resides cannot be given within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of his disease ( Inizan , paragraphs 42 and 44, and Watts , paragraphs 56 and 57).
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125. With regard to judicial review of the conditions referred to in the previous paragraph, in so far as adoption by the Commission of a directive or a regulation entails political, economic and social choices on its part, in which it is called upon to undertake complex assessments, it must be stated that the Commission has a broad discretion in that respect, so that judicial review of the legality of those acts is necessarily limited. The legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the Commission is seeking to pursue (see, to this effect, Afton Chemical , paragraph 46 and the case-law cited).
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46. With regard to judicial review of the conditions referred to in the previous paragraph, the European Union legislature must be allowed a broad discretion in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue ( S.P.C.M. and Others , paragraph 42 and case-law there cited).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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49
In addition, it is on the basis of the characteristics of EU law and the specific difficulties presented by its interpretation that it is for that national court to examine the extent to which it is not obliged to make a reference for a preliminary ruling to the Court. Accordingly, every provision of EU law, including the case-law of the Court in the relevant area, must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied (see, to that effect, judgment of 6 October 1982 in Cilfit and Others, 283/81, EU:C:1982:335, paragraphs 17 and 20).
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17 HOWEVER , THE EXISTENCE OF SUCH A POSSIBILITY MUST BE ASSESSED ON THE BASIS OF THE CHARACTERISTIC FEATURES OF COMMUNITY LAW AND THE PARTICULAR DIFFICULTIES TO WHICH ITS INTERPRETATION GIVES RISE .
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50 The national court has pointed out that, according to Genius Holding, an issuer of an invoice is not entitled to adjust VAT which has been improperly invoiced unless he can show that he acted in good faith.
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62 According to settled case-law, national courts are required to interpret their national law as far as possible in the light of the wording and purpose of the relevant Community provisions, in particular Article 119 of the Treaty, in order to achieve the result pursued by them (see to that effect, in particular, Case 157/86 Murphy v Bord Telecom Eireann [1988] ECR 673, paragraph 11, and Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8).
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11 IN SO FAR AS IT IS ESTABLISHED THAT THE DIFFERENCE IN WAGE LEVELS IN QUESTION IS BASED ON DISCRIMINATION ON GROUNDS OF SEX, ARTICLE 119 OF THE EEC TREATY IS DIRECTLY APPLICABLE IN THE SENSE THAT THE WORKERS CONCERNED MAY RELY ON IT IN LEGAL PROCEEDINGS IN ORDER TO OBTAIN EQUAL PAY WITHIN THE MEANING OF THE PROVISION AND IN THE SENSE THAT NATIONAL COURTS OR TRIBUNALS MUST TAKE IT INTO ACCOUNT AS A CONSTITUENT PART OF COMMUNITY LAW . IT IS FOR THE NATIONAL COURT, WITHIN THE LIMITS OF ITS DISCRETION UNDER NATIONAL LAW, WHEN INTERPRETING AND APPLYING DOMESTIC LAW, TO GIVE TO IT, WHERE POSSIBLE, AN INTERPRETATION WHICH ACCORDS WITH THE REQUIREMENTS OF THE APPLICABLE COMMUNITY LAW AND, TO THE EXTENT THAT THIS IS NOT POSSIBLE, TO HOLD SUCH DOMESTIC LAW INAPPLICABLE .
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26 THEREFORE, AS REGARDS AT LEAST THE SPECIFIC REQUIREMENT OF NATIONALITY OR OF RESIDENCE, ARTICLES 59 AND 60 IMPOSE A WELL-DEFINED OBLIGATION, THE FULFILMENT OF WHICH BY THE MEMBER STATES CANNOT BE DELAYED OR JEOPARDIZED BY THE ABSENCE OF PROVISIONS WHICH WERE TO BE ADOPTED IN PURSUANCE OF POWERS CONFERRED UNDER ARTICLES 63 AND 66 .
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23. Applying those principles, the Court has found that only actions which derive directly from insolvency proceedings and are closely connected with them are excluded from the scope of Regulation No 44/2001. Consequently, only those actions fall within the scope of Regulation No 1346/2000 (judgment in F-Tex , EU:C:2012:215, paragraphs 23 and 29 and the case-law cited).
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29. It follows from all of the above considerations, first, that Article 1(2)(b) of Regulation No 44/2001 excludes from the scope of that regulation, which, in accordance with recital 7 in its preamble, is intended to apply to all civil and commercial matters apart from certain well-defined matters, only actions which derive directly from insolvency proceedings and are closely connected with them. It follows from the same considerations, second, that only actions which derive directly from insolvency proceedings and are closely connected with them are covered by Regulation No 1346/2000.
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57. It is not necessary in that respect to find that the domestic provision in question does in practice affect a substantially higher proportion of such migrant workers. It is sufficient that it is liable to have such an effect (see, by analogy, Case C‑237/94 O’Flynn [1996] ECR I-2617, paragraph 21).
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43. According to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments in Merck , 292/82, EU:C:1983:335, paragraph 12; in TNT Express Nederland , C‑533/08, EU:C:2010:243, paragraph 44; and in Utopia , C‑40/14, EU:C:2014:2389, paragraph 27).
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12 IF THE WORDING OF THE CONTESTED REGULATIONS , READ TOGETHER WITH THE ANNEX TO REGULATION NO 1400/78 ONLY , IS REFERRED TO , THEN , AS THE FINANZGERICHT POINTS OUT , THE EXPORT REFUNDS ON MANNITOL AND SORBITOL SHOULD IN ANY EVENT BE GRANTED FOR THE PERIOD IN QUESTION AT THE REDUCED RATES SET OUT IN TABLE I OF THE ANNEX TO THE CONTESTED REGULATIONS . HOWEVER , AS THE COURT HAS EMPHASIZED IN PREVIOUS DECISIONS , IN INTERPRETING A PROVISION OF COMMUNITY LAW IT IS NECESSARY TO CONSIDER NOT ONLY ITS WORDING BUT ALSO THE CONTEXT IN WHICH IT OCCURS AND THE OBJECTS OF THE RULES OF WHICH IT IS PART .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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32. It is apparent from the file that the referring court starts from the premiss that Article 14(1)(a) of Regulation No 1408/71 relating to the temporary posting of workers does not apply to Mr Kita’s situation, on the ground that Format, the company which employs him, does not usually carry out significant activities in Poland, the Member State in which it is established, as required by a correct application of that provision (see, to that effect, Case 35/70 Manpower [1970] ECR 1251, paragraph 16, FTS , paragraphs 23 and 45; and Plum , paragraph 22). That premiss has not been disputed before the Court of Justice.
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23 The second condition concerns the relationship between the undertaking providing temporary personnel and the Member State in which it is established. In this regard, the Court has held, in paragraph 16 of its judgment in Manpower, cited above, that the exception allowing derogation to be made from the State of employment rule in the case of workers sent on a temporary posting is applicable only to workers employed by undertakings normally carrying on their business in the territory of the State in which they are established.
Undertaking to which he is normally attached
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55. It must therefore be acknowledged that there is, in Community trade-mark law, a public interest in not unduly restricting the availability of colours for the other operators who offer for sale goods or services of the same type as those in respect of which registration is sought.
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9 Ms Grant thereupon made an application against SWT to the Industrial Tribunal, Southampton, arguing that that refusal constituted discrimination based on sex, contrary to the Equal Pay Act 1970, Article 119 of the Treaty and/or Directive 76/207. She submitted in particular that her predecessor in the post, a man who had declared that he had had a meaningful relationship with a woman for over two years, had enjoyed the benefit which had been refused her.
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12 IN VIEW OF THE INTERPRETATION GIVEN TO ARTICLE 119 OF THE EEC TREATY , WHICH BY ITSELF ANSWERS THE QUESTION POSED BY THE HOUSE OF LORDS , THERE IS NO NEED TO CONSIDER POINTS ( B ) AND ( C ) OF QUESTION 1 WHICH RAISE THE SAME QUESTION WITH REFERENCE TO ARTICLE 1 OF DIRECTIVE 75/117/EEC AND OF DIRECTIVE 76/207/EEC .
QUESTION 2
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52 It does not follow, however, that the operation of any commercial port constitutes the operation of a service of general economic interest or, in particular, that all the services provided in such a port amount to such a task.
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31 As the Court of Justice observed in paragraph 24 of its judgment in Case C-47/91 Italy v Commission [1994] ECR I-4635, when the Commission has before it a specific grant of an aid alleged to be made in pursuance of a previously authorized scheme, it cannot at the outset examine it directly in relation to the Treaty. Prior to the initiation of any procedure, it must first examine whether the aid is covered by the general scheme and satisfies the conditions laid down in the decision approving it. If it did not do so, the Commission could, whenever it examined an individual aid, go back on its decision approving the aid scheme which already involved an examination in the light of Article 92 of the Treaty. This would jeopardize the principles of the protection of legitimate expectations and legal certainty from the point of view of both the Member States and traders since individual aid in strict conformity with the decision approving the aid scheme could at any time be called in question by the Commission.
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24 As for new aid, Article 93(3) provides that the Commission is to be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. The Commission then conducts an initial review of the aid proposed. If at the end of that review it considers a proposal to be incompatible with the common market having regard to Article 92, it must without delay initiate the contentious procedure provided for in Article 93(2). In such a case, the final sentence of Article 93(3) prohibits the Member State concerned from implementing the proposed measures until that procedure has resulted in a final decision. New aid is accordingly subject to the Commission' s preventive control and in principle may not be granted until that institution has declared it to be compatible with the Treaty.
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67. First of all, whilst in Schindler , Läärä and Zenatti the Court accepted that restrictions on gaming activities may be justified by imperative requirements in the general interest, such as consumer protection and the prevention of both fraud and incitement to squander on gaming, restrictions based on such grounds and on the need to preserve public order must also be suitable for achieving those objectives, inasmuch as they must serve to limit betting activities in a consistent and systematic manner.
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61. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 88).
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88. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied.
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27. The place where the damage occurred must not, however, be confused with the place where the event which damaged the product itself occurred, the latter being the place of the event giving rise to the damage. By contrast, the ‘place where the damage occurred’ (see Mines de potasse d'Alsace , paragraph 15, and Shevill and Others , paragraph 21) is the place where the event which gave rise to the damage produces its harmful effects, that is to say, the place where the damage caused by the defective product actually manifests itself.
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29. Furthermore, the Court has already held that where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I-7063, paragraphs 27 to 49; Manninen , paragraphs 29 to 55, and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 55).
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40. Secondly, the Finnish, French and United Kingdom Governments maintain that the Finnish tax legislation is objectively justified by the need to ensure the cohesion of the national tax system (Case C-204/90 Bachmann [1992] ECR I-249; Case C-300/90 Commission v Belgium [1992] ECR I‑305). In particular, they argue that, unlike in the case of the tax system examined in Verkooijen , there is in this case a direct link between the taxation of the company’s profits and the tax credit granted to the shareholder receiving the dividends. They point out that the tax credit is granted to the latter only on condition that that company has actually paid the tax on its profits. If that tax does not cover the minimum tax on the dividends to be distributed, that company is required to pay an additional tax.
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38 Since the directive provides no specific definition of "modifications to development projects", the expression must be interpreted in the light of the general scheme and purpose of the directive.
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89 It is true that, according to consistent case-law (see, inter alia, Case 175/78 Regina v Saunders [1979] ECR 1129, paragraph 11; Case 180/83 Moser v Land Baden-Wuerttemberg [1984] ECR 2539, paragraph 15; Case C-332/90 Steen v Deutsche Bundespost [1992] ECR I-341, paragraph 9; and Case C-19/92 Kraus, cited above, paragraph 15), the provisions of the Treaty concerning the free movement of workers, and particularly Article 48, cannot be applied to situations which are wholly internal to a Member State, in other words where there is no factor connecting them to any of the situations envisaged by Community law.
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11THE PROVISIONS OF THE TREATY ON FREEDOM OF MOVEMENT FOR WORKERS CANNOT THEREFORE BE APPLIED TO SITUATIONS WHICH ARE WHOLLY INTERNAL TO A MEMBER STATE , IN OTHER WORDS , WHERE THERE IS NO FACTOR CONNECTING THEM TO ANY OF THE SITUATIONS ENVISAGED BY COMMUNITY LAW .
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28 In that connection, it would also seem appropriate for the national court to take into account advertising material published by Käserei Champignon and placed before the courts by the plaintiff, which suggests that the phonetic similarity between the two names is not fortuitous.
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32. As the Court has consistently held, it is clear that the right to deduct is an integral part of the VAT scheme and as a general rule may not be limited. In particular, that right is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, notably, Case C‑62/93 BP Supergas [1995] ECR I‑1883, paragraph 18; Case C‑386/06 Cedilac [2007] ECR I‑12327, paragraph 31; and Sosnowska , paragraph 15).
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18 The right of deduction provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and in principle may not be limited. The Court has consistently held (see, in particular, Case 50/87 Commission v France [1988] ECR 4797, paragraphs 15 to 17 and Case C-97/90 Lennartz v Finanzamt Muenchen III [1991] ECR I-3795, paragraph 27) that the right of deduction must be exercised immediately in respect of all the taxes charged on transactions relating to inputs. Any limitation on the right of deduction affects the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for in the directive.
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63 THE CENTRALIZATION OF BOTH SUPPLY AND DEMAND MAY BE CONSIDERED TO BE THE RESULT OF THE ITALIAN REGULATIONS AND WAS ENCOURAGED IN ADDITION BY THE FACT THAT, BECAUSE OF THE SIZE OF THE AMOUNTS PUT UP FOR TENDER, BUYERS FOUND THAT THERE WAS A STRONG INCENTIVE FOR THEM TO TURN TO EXPORTERS, WHOSE OUTPUT WAS ADEQUATE, WHO COULD GUARANTEE REGULAR BULK DELIVERIES AND ENTER INTO AGREEMENTS AT ATTRACTIVE PRICES, MAINLY BECAUSE THEY COULD GET UNUSUALLY SATISFACTORY FREIGHT RATES WHICH RAILWAY UNDERTAKINGS COULD NOT HAVE OFFERED FOR SMALLER AMOUNTS .
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102. It should also be noted that the Court of Justice held, at paragraph 29 of Commission v France , that no provision of European Union law requires the Commission, when ordering the recovery of aid declared incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient to calculate the amount itself, without overmuch difficulty (see also Case C‑480/98 Spain v Commission [2000] ECR I-8717, paragraph 25, and Case C‑415/03 Commission v Greece [2005] ECR I-3875, paragraph 39).
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25 In that regard, it should be observed that no provision of Community law requires the Commission, when ordering the recovery of aid declared incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission's decision to include information enabling the recipient to work out himself, without overmuch difficulty, that amount (see, to that effect, Case 102/87 France v Commission [1988] ECR 4067, paragraph 33).
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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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74
To that end, the Court ensures that Article 4a(1) of Framework Decision 2002/584 is interpreted and applied in accordance with the requirements of Article 6 of the ECHR and the relevant case-law of the European Court of Human Rights (see, to that effect, judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraphs 78 to 80, and of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraphs 87 to 89).
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78
As is clear from the case-law of the European Court of Human Rights, the term ‘conviction’ within the meaning of the ECHR refers to both a finding of guilt after it has been established in accordance with the law that there has been an offence, and the imposition of a penalty or other measure involving deprivation of liberty (see, to that effect, ECtHR, 21 October 2013, Del Río Prada v. Spain, CE:ECHR:2013:1021JUD004275009, § 123, and the case-law cited).
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22 Cette constatation vaut, en particulier, pour les articles 40 et 41, figurant dans le titre III relatif à la coopération dans le domaine de la main-d' oeuvre, qui, loin de revêtir un caractère purement programmatique, établissent, dans le domaine des conditions de travail et de rémunération et dans celui de la sécurité sociale, un principe susceptible de régir la situation juridique des particuliers .
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16. La Commission n’était donc pas tenue d’émettre un nouvel avis motivé même si des améliorations ont pu être constatées. Ainsi qu’il résulte d’une jurisprudence constante, c’est à la Commission qu’il incombe d’apprécier l’opportunité d’agir contre un État membre, de déterminer les dispositions qu’il aurait violées et de choisir le moment où elle initiera la procédure en manquement à son encontre, les considérations qui déterminent ce choix ne pouvant affecter la recevabilité de l’action (voir, notamment, arrêt du 8 décembre 2005, Commission/Luxembourg, C‑33/04, Rec. p. I‑10629, point 66).
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66. Furthermore, it is for the Commission to determine whether it is expedient to take action against a Member State, what provisions the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine that choice cannot affect the admissibility of the action (Case C-317/92 Commission v Germany [1994] ECR I-2039, paragraph 4; Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 27; and Commission v France , cited above, paragraph 24).
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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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93. Where it is justified by overriding considerations of legal certainty, the second paragraph of Article 264 TFEU, which is also applicable by analogy to a reference under Article 267 TFEU for a preliminary ruling on the validity of acts of the European Union, confers on the Court a discretion to decide, in each particular case, which specific effects of the act in question must be regarded as definitive (see, to that effect, Case C‑333/07 Regie Networks [2008] ECR I‑10807, paragraph 121 and the case‑law cited).
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121. In that regard, it must be noted, first, that, where it is justified by overriding considerations of legal certainty, the second paragraph of Article 231 EC, which is also applicable by analogy to a reference under Article 234 EC for a preliminary ruling on the validity of a measure adopted by the Community institutions, confers on the Court a discretion to decide, in each particular case, which specific effects of such a measure must be regarded as definitive (see to that effect, inter alia, Case C‑228/99 Silos [2001] ECR I‑8401, paragraph 35 and the case‑law cited).
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Par conséquent, il n’est pas, en principe, possible de déduire directement de la non-conformité d’une situation de fait avec les objectifs fixés à l’article 13 de la directive 2008/98 que l’État membre concerné a nécessairement manqué aux obligations imposées par cette disposition, à savoir prendre les mesures nécessaires pour s’assurer que les déchets soient éliminés sans mettre en danger la santé de l’homme et sans porter préjudice à l’environnement. Toutefois, la persistance d’une telle situation de fait, notamment lorsqu’elle entraîne une dégradation significative de l’environnement pendant une période prolongée sans intervention des autorités compétentes, peut révéler que les États membres ont outrepassé la marge d’appréciation que leur confère cette disposition (arrêts du 10 juin 2010, Commission/Portugal, C‑37/09, non publié, EU:C:2010:331, point 36, et du 11 décembre 2014, Commission/Grèce, C‑677/13, non publié, EU:C:2014: 2433, point 78).
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35. Indeed, it is apparent from the Court’s well established case-law that the text of Article 81(1) EC refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgments in LTM , 56/65, EU:C:1966:38, p. 358; Consten and Grundig v Commission , 56/64 and 58/64, EU:C:1966:41, p.p. 492 and 493; Musique Diffusion française and Others v Commission , 100/80 to 103/80, EU:C:1983:158, paragraphs 72 to 80; Binon , 243/83, EU:C:1985:284, paragraphs 39 to 47; and Javico , C‑306/96, EU:C:1998:173, paragraphs 10 to 14).
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41 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , WHICH TOOK PART IN THE PROCEEDINGS SOLELY IN ORDER TO SUBMIT OBSERVATIONS WITH REGARD TO THE THIRD QUESTION , CONSIDERS THAT THE FREEDOM OF THE PRESS , AS A FUNDAMENTAL RIGHT PROTECTED BY THE CONSTITUTIONAL LAW OF THE MEMBER STATES AND BY THE COURT ' S CASE-LAW , ENTAILS THE FREEDOM TO CONTRIBUTE TO THE FORMATION OF PUBLIC OPINION . FOR THAT REASON NEWSPAPERS AND PERIODICALS AS WELL AS THEIR DISTRIBUTION HAVE SPECIAL CHARACTERISTICS . THE NATURE OF NEWSPAPERS AND PERIODICALS REQUIRES AN EXTREMELY RAPID SYSTEM FOR THEIR DISTRIBUTION IN VIEW OF THE VERY LIMITED PERIOD DURING WHICH THEY CAN BE SOLD BEFORE THEY ARE OUT OF DATE ; AT THE END OF THAT PERIOD , THE LENGTH OF WHICH VARIES ACCORDING TO THE SPECIFIC PUBLICATION IN QUESTION , NEWSPAPERS AND PERIODICALS HAVE PRACTICALLY NO VALUE . TO THOSE FACTORS MUST BE ADDED THE HETEROGENEITY OF NEWSPAPERS AND PERIODICALS AND THE LACK OF ELASTICITY IN DEMAND SINCE EACH NEWSPAPER OR PERIODICAL HAS MORE OR LESS ITS OWN BODY OF CUSTOMERS .
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54 In the light of those circumstances, and since the removal from supervision as the operative event for the agricultural conversion rate was already a derogation from the agrimonetary system in force since 1985, detailed reasoning would have been required rather if it had been decided to maintain that exception to the general scheme.
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20 The possibility of limiting the temporal effect of the invalidity of a Community regulation, whether under Article 173 or Article 177, is a power conferred on the Court by the Treaty in the interest of the uniform application of Community law throughout the Community (see the judgment in Case 112/83 Produits de Maïs [1985] ECR 719, paragraph 17).
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17 SECONDLY , IT MUST BE EMPHASIZED THAT THE COURT ' S POWER TO IMPOSE TEMPORAL LIMITS ON THE EFFECTS OF A DECLARATION THAT A LEGISLATIVE ACT IS INVALID , IN THE CONTEXT OF PRELIMINARY RULINGS UNDER INDENT ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 , IS JUSTIFIED BY THE INTERPRETATION OF ARTICLE 174 OF THE TREATY HAVING REGARD TO THE NECESSARY CONSISTENCY BETWEEN THE PRELIMINARY RULING PROCEDURE AND THE ACTION FOR ANNULMENT PROVIDED FOR IN ARTICLES 173 , 174 AND 176 OF THE TREATY , WHICH ARE TWO MECHANISMS PROVIDED BY THE TREATY FOR REVIEWING THE LEGALITY OF ACTS OF THE COMMUNITY INSTITUTIONS . THE POSSIBILITY OF IMPOSING TEMPORAL LIMITS ON THE EFFECTS OF THE INVALIDITY OF A COMMUNITY REGULATION , WHETHER UNDER ARTICLE 173 OR ARTICLE 177 , IS A POWER CONFERRED ON THE COURT BY THE TREATY IN THE INTEREST OF THE UNIFORM APPLICATION OF COMMUNITY LAW THROUGHOUT THE COMMUNITY . IN THE PARTICULAR CASE OF THE JUDGMENT OF 15 OCTOBER 1980 , REFERRED TO BY THE TRIBUNAL , THE USE OF THE POSSIBILITY PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 174 WAS BASED ON REASONS OF LEGAL CERTAINTY MORE FULLY EXPLAINED IN PARAGRAPH 52 OF THAT JUDGMENT .
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77. En effet, la réglementation litigieuse considère, en principe, les héritiers ou les donataires tant résidents que non-résidents comme assujettis aux fins de la perception de droits de succession ou de mutation sur des biens immeubles situés en Espagne. Partant, il n’existe entre un résident et un non-résident aucune différence de situation objective de nature à fonder une différence de traitement (voir, en ce sens, arrêt Schumacker, EU:C:1995:31, point 37).
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11 As may be seen from the Court' s consistent case-law (see, most recently, the judgment in Case C-326/88 Hansen [1990] ECR I-2911, at paragraph 17), when a Community regulation does not provide any specific penalty in case of breach but refers on this matter to national provisions, the Member States retain a discretion as to the choice of penalties. However, under Article 5 of the EEC Treaty, which requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law, they must ensure that infringements of a Community regulation are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.
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17 Furthermore, it should be borne in mind that, according to the consistent case-law of the Court, as confirmed by its judgment in Case 68/88 Commission v Greece [1989] ECR 2965, where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the EEC Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law . For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive .
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43. In those circumstances, both the place of arrival and the place of departure of the aircraft must be considered, in the same respect, as the place of provision of the services which are the subject of an air transport contract.
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63. To limit the application, in circumstances such as those at issue in the main proceedings, of the principle of the exhaustion of the distribution right under Article 4(2) of Directive 2009/24 solely to copies of computer programs that are sold on a material medium would allow the copyright holder to control the resale of copies downloaded from the internet and to demand further remuneration on the occasion of each new sale, even though the first sale of the copy had already enabled the rightholder to obtain an appropriate remuneration. Such a restriction of the resale of copies of computer programs downloaded from the internet would go beyond what is necessary to safeguard the specific subject-matter of the intellectual property concerned (see, to that effect, Football Association Premier League and Others , paragraphs 105 and 106).
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105. However, it is also necessary that such a restriction does not go beyond what is necessary in order to attain the objective of protecting the intellectual property at issue (see, to this effect, UTECA , paragraphs 31 and 36).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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34 Only in the circumstances provided for in the second sentence of Article 2(2), to which the second part of the 15th recital refers, may the receiving Member State exceptionally suspend retransmission of television broadcasts, on the conditions laid down by that provision. The Court went on to state that if a Member State considers that another Member State has failed to fulfil its obligations under the Directive, it may bring Treaty infringement proceedings under Article 170 of the EC Treaty or request the Commission itself to take action against that Member State under Article 169 of the EC Treaty (Commission v Belgium, cited above, paragraph 36).
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36 Only in the circumstances provided for in the second sentence of Article 2(2), to which the second part of the fifteenth recital refers, may the receiving Member State exceptionally suspend retransmission of televised broadcasts, on the conditions laid down by that provision. Moreover, if a Member State considers that another Member State has failed to fulfil its obligations under the directive, it may, as the Commission has rightly observed, bring Treaty infringement proceedings under Article 170 of the EC Treaty or request the Commission itself to take action against that Member State under Article 169 of the Treaty.
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97. Secondly, since the Court delivered its judgment in Budĕjovický Budvar , the Czech Republic has acceded to the European Union.
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18 The Court would reiterate that, according to its settled case-law, the provisions of Title II of Regulation No 1408/71, of which Article 14 forms part, constitute a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the Community shall be subject to the social security scheme of only one Member State, in order to prevent the system of legislation of more than one Member State from being applicable and to avoid the complications which may result from that situation (see, in particular, Fitzwilliam Technical Services, cited above, paragraph 20).
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20 It must be remembered first of all that the provisions of Title II of Regulation No 1408/71, of which Article 14 forms part, constitute, according to the settled case-law of the Court, a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the Community shall be subject to the social security scheme of only one Member State, in order to prevent the system of legislation of more than one Member State from being applicable and to avoid the complications which may result from that situation (see Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 12; Case C-425/93 Calle Grenzshop Andresen [1995] ECR I-269, paragraph 9; Case C-131/95 Huijbrechts [1997] ECR I-1409, paragraph 17, and Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 28).
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56 It is therefore necessary to ascertain, secondly, whether Falck is directly affected by the contested judgment.
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34 According to the settled case-law of the Court, Article 34 of the Treaty applies to national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a particular advantage for national production or for the domestic market of the State in question (see Case 172/82 Inter-Huiles and Others [1983] ECR 555, paragraph 12).
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12 THAT CONCLUSION IS REINFORCED BY ARTICLE 34 OF THE EEC TREATY , WHICH PROHIBITS ALL MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON EXPORTS . AS THE COURT HAS REPEATEDLY HELD , THE PROHIBITION CONCERNS ALL NATIONAL MEASURES WHICH HAVE AS THEIR SPECIFIC OBJECT OR EFFECT THE RESTRICTION OF PATTERNS OF EXPORTS AND THEREBY THE ESTABLISHMENT OF A DIFFERENCE IN TREATMENT BETWEEN THE DOMESTIC TRADE OF A MEMBER STATE AND ITS EXPORT TRADE , IN SUCH A WAY AS TO PROVIDE A SPECIAL ADVANTAGE FOR NATIONAL PRODUCTS OR FOR THE DOMESTIC MARKET OF THE STATE IN QUESTION . CONSEQUENTLY , PROVISIONS WHICH CONTRAVENE THOSE RULES ARE ALSO CONTRARY TO ARTICLE 34 OF THE TREATY .
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20. Cette exigence répond à la finalité de la procédure précontentieuse qui, selon une jurisprudence établie, consiste à donner à l’État membre concerné l’occasion, d’une part, de se conformer à ses obligations découlant du droit de l’Union et, d’autre part, de faire utilement valoir ses moyens de défense à l’encontre des griefs formulés par la Commission (voir arrêts du 15 janvier 2002, Commission/Italie, C‑439/99, Rec. p. I‑305, point 10, et Commission/Portugal, précité, point 20).
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98. The statement of reasons required by Article 253 EC must explain clearly and unambiguously the reasoning followed by the Community authority which has adopted the contested act, so as to enable interested parties to take cognisance of the justifications for the measure for the purpose of defending their rights and to enable the courts to exercise their powers of review (Spain v Commission , paragraph 82).
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82 The statement of reasons required by Article 190 of the Treaty must explain clearly and unambiguously the reasoning followed by the Community institution which has adopted the contested act, so as to enable interested parties to take cognisance of the justifications for the measure for the purpose of defending their rights and to enable the courts to exercise their powers of review.
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13. Il ressort de la jurisprudence que l’obligation d’établir des plans de gestion des déchets constitue une obligation de résultat à laquelle il ne saurait être satisfait par des mesures préparant ou visant à l’élaboration de plans ou fixant un cadre réglementaire de nature à réaliser cet objectif (arrêts du 2 mai 2002, Commission/France, C‑292/99, Rec. p. I‑4097, point 39; du 14 avril 2005, Commission/Grèce, C‑163/03, non publié au Recueil, point 74, et du 14 juin 2007, Commission/Italie, précité, point 27).
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33. To answer the question, it must be recalled that, according to settled case‑law, in interpreting provisions of European Union law such as those at issue here, it is necessary to consider not only their wording but also their context and the objectives pursued by the rules of which they form part (see, inter alia, Case C‑185/89 Velker International Oil Company [1990] ECR I‑2561, paragraph 17, and Case C‑33/11 A [2012] ECR, paragraph 27).
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17 In order to interpret the term, recourse must therefore be had to the context in which it occurs, bearing in mind the purpose and structure of the Sixth Directive .
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11 IF THERE IS NO SUCH DISTINCTION , THEREFORE , THE FACT THAT WORK PAID AT TIME RATES IS REMUNERATED AT AN HOURLY RATE WHICH VARIES ACCORDING TO THE NUMBER OF HOURS WORKED PER WEEK DOES NOT OFFEND AGAINST THE PRINCIPLE OF EQUAL PAY LAID DOWN IN ARTICLE 119 OF THE TREATY IN SO FAR AS THE DIFFERENCE IN PAY BETWEEN PART-TIME WORK AND FULL-TIME WORK IS ATTRIBUTABLE TO FACTORS WHICH ARE OBJECTIVELY JUSTIFIED AND ARE IN NO WAY RELATED TO ANY DISCRIMINATION BASED ON SEX .
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40. In that regard, it must be noted that while Directive 91/439 was repealed with effect from 19 January 2013 pursuant to the first paragraph of Article 17 of Directive 2006/126, a number of provisions of Directive 2006/126, such as Articles 2(1) and 11(4) thereof, became applicable from 19 January 2009 in accordance with the second paragraph of Article 18 of Directive 2006/126 (see, to that effect, judgment in Akyüz , C‑467/10, EU:C:2012:112, paragraph 31). That is not, however, the case as regards Article 11(2) of Directive 2006/126, which is not among the provisions mentioned in the second paragraph of Article 18 of that directive.
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31. While Directive 91/439 is to be repealed only with effect from 19 January 2013, Articles 2(1) and 11(4) of Directive 2006/126 are nonetheless applicable as from 19 January 2009, in accordance with the second subparagraph of Article 18 of that directive.
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45. In this regard it is sufficient to observe that the Court has repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C‑152/05 Commission v Germany [2008] ECR I‑39, paragraph 15, and Case C‑286/12 Commission v Hungary [2012] ECR I‑0000, paragraph 41 and the case-law cited).
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39. The Court has repeatedly held that, given the fundamental importance of the principle of equal treatment, the exception to the prohibition of discrimination on grounds of sex, provided for in that provision, must be interpreted strictly, so as to be applicable only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and to the possible consequences thereof for other social security benefits (see, to this effect, Marshall , paragraph 36; Case C-207/04 Vergani [2005] ECR I‑7453, paragraph 33; and Case C-423/04 Richards [2006] ECR I‑3585, paragraph 36).
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33. It is clear from settled case-law that, given the fundamental importance of the principle of equal treatment, the exception to the prohibition of discrimination on grounds of sex, provided for in Article 7(1)(a) of Directive 79/7, must be interpreted strictly (see, in particular, Case 152/84 Marshall [1986] ECR 723, paragraph 36, and Case C‑328/91 Thomas and Others [1993] ECR I‑1247, paragraph 8). That provision can apply only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and to the consequences thereof for other social security benefits (Case 151/84 Roberts [1986] ECR 703, paragraph 35; also to that effect, Case C‑303/02 Haackert [2004] ECR I‑2195, paragraph 30). That exception to the prohibition of discrimination on grounds of sex is therefore not applicable in the case of a tax concession such as that at issue in the main proceedings, which is not a social security benefit.
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21 L ' ORIGINE CONVENTIONNELLE , ET NON PAS LEGALE , DU REGIME LITIGIEUX EST CONFIRMEE PAR LE FAIT QUE LEDIT REGIME ET LA REGLEMENTATION Y AFFERENTE SONT CONSIDERES , AINSI QU ' IL A ETE RAPPELE CI-DESSUS , COMME FAISANT PARTIE INTEGRANTE DES CONTRATS DE TRAVAIL ENTRE BILKA ET SES EMPLOYES .
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42
Thirdly, it clearly follows from the schematic interpretation of the provisions in question adopted by the Court of Justice that, although the time limit set for the Commission to make its finding has been amended many times by the applicable rules, the EU legislature has, on each occasion, intended to impose on it a precise time limit, taking the view that it was in the interest of both the EU and its Member States that the end of the financial corrections procedure be foreseeable, which implies the setting of a predetermined time limit for adopting the final decision, while leaving the Commission sufficient time to adopt that decision (see, to that effect, judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 84 to 86 and 88, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 84 to 86 and 88).
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86. On the contrary, as is apparent from recital 5 in the preamble to Regulation No 1265/1999, the procedure which the legislature of the European Union has put in place for financial corrections is based on cooperation between the Member State concerned and the Commission, which must be founded on a balance between the rights and obligations of the parties. It would, in those circumstances, be contrary to that requirement for balance between the rights and obligations of the parties in this procedure if the Member State is obliged to respect certain time-limits, while the Commission is not.
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36. In that judgment, the Court noted that the Framework Directive makes a clear distinction between the production of content, which involves editorial responsibility, and the transmission of content, which does not entail any editorial responsibility. The Court stated that content and transmission are covered by different measures which pursue their own specific objectives (see UPC Nederland EU:C:2013:709, paragraph 41).
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30
By contrast, non-economic activities do not fall within the scope of the Sixth Directive (judgments of 13 March 2008, Securenta, C‑437/06, EU:C:2008:166, paragraphs 30 and 31, and of 12 February 2009, Vereniging Noordelijke Land- en Tuinbouw Organisatie, C‑515/07, EU:C:2009:88, paragraphs 36 and 37).
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30. To the extent that input VAT relating to expenditure incurred by a taxpayer is connected with activities which, in view of their non-economic nature, do not fall within the scope of the Sixth Directive, it cannot give rise to a right to deduct.
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12 It is settled law (see, in particular, Case C-125/92 Mulox IBC v Hendrick Geels [1993] ECR I-4075, paragraph 10) that, in principle, the Court of Justice will interpret the terms of the Brussels Convention autonomously so as to ensure that it is fully effective, having regard to the objectives of Article 220 of the EEC Treaty, for the implementation of which it was adopted.
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48. According to the case-law of the Court, the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law. The European Union legislature thus considered that the fundamental changes to the living conditions of the persons concerned during the period of at least 14 weeks preceding and after childbirth constituted a legitimate ground on which they could suspend their employment, without the public authorities or employers being allowed in whatever way to call the legitimacy of that ground into question (see Case C‑116/06 Kiiski [2007] ECR I‑7643, paragraph 49).
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49. In those circumstances, the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law. The Community legislature thus considered that the fundamental changes to the living conditions of the persons concerned during the period of at least 14 weeks preceding and after childbirth constituted a legitimate ground on which they could suspend their employment, without the public authorities or employers being allowed in whatever way to call the legitimacy of that ground into question.
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55. Since the prohibition on participating in anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum.
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