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36. In that regard, the Court has repeatedly stressed that the rules breached are aimed solely at economic operators who have freely chosen to take advantage of an agricultural aid scheme (Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 13; Case C-240/90 Germany v Commission [1992] ECR I-5383, paragraph 26; Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 41 and Case C-489/10 Bonda [2012] ECR, paragraph 30).
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13 IN THAT REGARD, IT SHOULD BE POINTED OUT FIRST OF ALL THAT IF TRADERS THEMSELVES DECIDE TO TAKE ADVANTAGE OF THE SPECIAL ARRANGEMENTS INVOLVING ADVANCE RELEASE OF THEIR SECURITY, THEY DO SO VOLUNTARILY AND IN THE LIGHT OF THE ECONOMIC ADVANTAGE WHICH THEY SEE THEREIN . THE PENALTY IS THUS NO MORE THAN A COUNTERBALANCE TO THE EARLY RELEASE OF THE SECURITY, WHICH IS NOT RELEASED DEFINITIVELY BUT MERELY PROVISIONALLY AND ON CONDITION THAT THE UNDERTAKING TO EXPORT IS CARRIED OUT WITHIN THE TIME-LIMITS LAID DOWN . ITS ONLY EFFECT, IF THE TIME-LIMIT FOR EXPORTATION IS NOT COMPLIED WITH, IS TO PLACE THE TRADER HAVING HAD THE BENEFIT OF THE EARLY RELEASE OF HIS SECURITY IN THE SAME ECONOMIC POSITION AS A TRADER WHO OPTED FOR THE GENERAL RULES, UNDER WHICH THE SECURITY LODGED IN CONNECTION WITH THE EXPORT
LICENCE IS RELEASED ONLY AFTER THE ACTUAL EXPORTATION WITHIN THE TIME-LIMIT OF THE GOODS AT ISSUE . THUS IN A SYSTEM INVOLVING ADVANCE RELEASE OF THE SECURITY, THE PENALTY CONSTITUTES THE COROLLARY OF THE SYSTEM OF SECURITY AND IS INTENDED TO ACHIEVE THE SAME OBJECTIVES AS THE SECURITY ITSELF . THAT SANCTION ISIMPOSED AT A FLAT RATE AND IS INDEPENDENT OF ANY CULPABILITY ON THE PART OF THE TRADER . IT IS THEREFORE AN INTEGRAL PART OF THE SYSTEM OF SECURITY AT ISSUE AND IS NOT CRIMINAL IN NATURE .
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60. That being so, the validity of Regulation No 398/2004 should not additionally be appraised by reference to grounds not specified by the referring court (see, by analogy, Ordre des barreaux francophones et germanophone and Others , paragraphs 17 to 19).
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45. The Court has, moreover, repeatedly held that moral, religious or cultural factors, as well as the morally and financially harmful consequences for the individual and for society associated with betting and gaming, may be capable of justifying a sufficient margin of discretion for the national authorities for them to determine, in accordance with their own scale of values, what is required in order to ensure consumer protection and the protection of society ( Stoß and Others , paragraph 76 and the case-law cited).
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76. In that context, the Court has, moreover, often stated that moral, religious or cultural factors, as well as the morally and financially harmful consequences for the individual and for society associated with betting and gaming, may serve to justify a margin of discretion for the national authorities, sufficient to enable them to determine, in accordance with their own scale of values, what is required in order to ensure consumer protection and the preservation of public order (see, in particular, Placanica and Others , paragraph 47 and case-law cited, and Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 57).
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38. It follows from the wording of those provisions that Article 2(1) of Directive 2001/83 makes a positive determination of the scope of that directive, by providing that it is to apply to medicinal products for human use intended to be placed on the market in Member States and either prepared industrially or manufactured by a method involving an industrial process, while Article 3, points 1 and 2, of that directive provides for certain exceptions to its scope.
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35 Contrary to what the German Government claims, it is not sufficient to take all reasonably practicable measures: the Directive requires the Member States to take all necessary measures to ensure that bathing waters conform to the limit values set therein, within a period which is longer than that laid down for transposition of the Directive, in order to enable the Member States to satisfy such a requirement (Commission v United Kingdom, cited above, paragraphs 42 and 44). The Directive therefore requires the Member States to ensure that certain results are achieved and, apart from the derogations provided for, does not allow them to rely on particular circumstances to justify a failure to fulfil that obligation (Commission v United Kingdom, cited above, paragraph 43, and Case C-92/96 Commission v Spain [1998] ECR I-505, paragraph 28). The German Government does not rely on any of those derogations with regard to those areas.
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28 Furthermore, the only derogations from the obligation laid down in Article 4(1) of the directive are those provided for in Articles 4(3), 5(2) and 8, whose provisions are summarised above. It follows that the directive requires the Member States to take steps to ensure that certain results are attained, and that, apart from those derogations, they cannot rely on particular circumstances to justify a failure to fulfil that obligation (see, to that effect, Case C-56/90 Commission v United Kingdom [1993] ECR I-4109, paragraph 43).
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229THE INTERPLAY OF SUPPLY AND DEMAND SHOULD , OWING TO ITS NATURE , ONLY BE APPLIED TO EACH STAGE WHERE IT IS REALLY MANIFEST .
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55. With regard to the scope of the Sixth Directive, the Court has held that the rules laid down in the Directive have binding and mandatory force throughout the national territory of the Member States (see, to that effect, Case 283/84 Trans Tirreno Express [1986] ECR 231, paragraph 20).
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20 ALTHOUGH , AS HAS BEEN STATED ABOVE , THE TERRITORIAL SCOPE OF THE SIXTH DIRECTIVE CORRESPONDS TO THAT OF THE EEC TREATY AS DEFINED FOR EACH MEMBER STATE IN ARTICLE 227 , AND ALTHOUGH THE RULES LAID DOWN IN THE DIRECTIVE THEREFORE HAVE BINDING AND MANDATORY FORCE THROUGHOUT THE NATIONAL TERRITORY OF THE MEMBER STATES , THE DIRECTIVE , AND IN PARTICULAR ARTICLE 9 ( 2 ) ( B ) THEREOF , IN NO WAY RESTRICTS THE FREEDOM OF THE MEMBER STATES TO EXTEND THE SCOPE OF THEIR TAX LEGISLATION BEYOND THEIR NORMAL TERRITORIAL LIMITS , SO LONG AS THEY DO NOT ENCROACH ON THE JURISDICTION OF OTHER STATES .
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In that regard, it must be recalled that the appraisal of those facts and the assessment of that evidence does not, save where the facts or evidence are distorted, constitute a point of law which, as such, is open to review by the Court of Justice on appeal (judgment of 2 March 2017, Panrico v EUIPO, C‑655/15 P, not published, EU:C:2017:155, paragraph 86).
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43 Protocol No 2 which, by virtue of Article 239 of the Treaty, is an integral part of the Treaty is worded as follows:
"For the purposes of Article 119 of this Treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law."
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28 It must therefore be concluded that, unlike the benefits awarded by national statutory social security schemes, a pension paid under a contracted-out scheme constitutes consideration paid by the employer to the worker in respect of his employment and consequently falls within the scope of Article 119 of the Treaty .
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48. Although that is the position where tax fraud is committed by the taxable person himself, it is also the case where a taxable person knew, or should have known, that, by his purchase, he was taking part in a transaction connected with VAT fraud. In such circumstances, the taxable person concerned must, for the purposes of the Sixth Directive, be regarded as a participant in such fraud, whether or not he profits from the resale of the goods or the use of the services in the context of the taxable transactions subsequently carried out by him (see judgments in Bonik , C‑285/11, EU:C:2012:774, paragraphs 38 and 39 and the case-law cited, and in Maks Pen , C‑18/13, EU:C:2014:69, paragraph 27).
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22. However, at paragraphs 13 and 14 of the judgment in Siegen , the Court held that, although the absorption by a member of losses incurred by a company must be regarded as a contribution that increases the company’s assets, the same is not true if those losses are absorbed pursuant to a profit and loss transfer agreement entered into before the losses were sustained, since that undertaking means that losses subsequently incurred by the company will have no effect on the level of the company’s assets.
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14 Accordingly, the answer to be given to the second question submitted by the national court is that the absorption of a company' s losses by a shareholder pursuant to a profit and loss transfer agreement concluded before those losses are determined does not increase the assets of that company for the purposes of Article 4(2)(b ) of the directive on the raising of capital .
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47 As is clear from paragraphs 30 and 33 of the judgment in Joined Cases C-356/90 and C-180/91 Belgium v Commission [1993] ECR I-2323, where aid is covered by derogating rules adopted under that provision, that aid is, as a matter of principle, at the outset incompatible with the common market and is considered to be compatible with the common market only on condition that it complies with the criteria for derogation contained in the decision approving that system.
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40. According to settled case-law, in proceedings under 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. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38, and Case C‑544/07 Rüffler [2009] ECR I‑0000, paragraph 36).
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38 It should remembered that it is settled law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty 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, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59).
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26 THE NOTICE OF COMPLAINTS FULFILS THIS REQUIREMENT SINCE IT SETS FORTH CLEARLY, ALBEIT SUCCINCTLY, THE ESSENTIAL FACTS ON WHICH THE COMMISSION RELIES .
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46. It is thus clear from case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the general interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49, and Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55). Likewise, as regards the decisions which Directive 90/435 leaves in the hands of the Member States, the Court has pointed out that these may be exercised only in compliance with the fundamental provisions of the Treaty, in particular those relating to freedom of establishment ( Keller Holding , paragraph 45).
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33. It should be noted that the Finnish tax legislation is designed to prevent double taxation of company profits by granting to a shareholder who receives dividends a tax advantage linked to the taking into account of the corporation tax due from the company distributing the dividends.
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23. In those circumstances, except where the person concerned has definitively ceased to be duly registered as belonging to the labour force of the host Member State because objectively he no longer has any chance of rejoining the labour force or has exceeded a reasonable time-limit for finding new employment after the end of his prison term, the national authorities can restrict the rights which he derives from Article 6(1), third indent, of Decision No 1/80 as regards residence and employment only on the basis of Article 14(1) of that decision (see Nazli , paragraph 44).
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38 However, the Court has consistently held that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. Dismissal of a request from a national court is possible where it is clear that the interpretation of Community law or the consideration of the validity of a Community rule, requested by that court, has no bearing on the real situation or on the subject-matter of the case in the main proceedings (see in particular the judgments in Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, paragraphs 25 and 26; Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR 711, paragraph 17, and Case C-62/93 BP Soupergaz [1995] ECR I-1883, paragraph 10).
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26 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 or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or to the subject-matter of the main action (see, among others, the judgment in Case C-186/90 Durighello [1991] ECR I-5773, paragraph 9). However, that is not the position in this case.
The use by the authorities of the Member States of information contained in the answers to the requests for information sent to undertakings under Article 11 of Regulation No 17
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53
In providing for this method of free allocation of allowances, fully-harmonised on a sectoral basis, the legislature gave concrete expression to the essential requirement that distortions of competition in the internal market be minimised.
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19. The proper conduct of that procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see Case C-1/00 Commission v France [2001] ECR I-9989, paragraph 53, and Case C-287/00 Commission v Germany [2002] ECR I-5811, paragraph 17).
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53 As to those submissions, it is to be observed that the function of the pre-litigation procedure laid down in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission. The proper conduct of that procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (order in Case C-266/94 Commission v Spain [1995] ECR I-1975, paragraphs 16 and 17).
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55. It has consistently been held that if a prior administrative authorisation scheme is to be justified even though it derogates from such fundamental freedoms, it must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily. Furthermore, any person affected by a restrictive measure based on such a derogation must have an effective judicial remedy available to him (see Sporting Exchange , paragraph 50, and Carmen Media Group , paragraph 87).
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31. Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (judgments in Inuit Tapiriit Kanatami and Others v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 93, and Telefónica v Commission , C‑274/12 P, EU:C:2013:852, paragraph 29).
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93. Accordingly, natural or legal persons who cannot, by reason of the conditions of admissibility stated in the fourth paragraph of Article 263 TFEU, challenge directly European Union acts of general application do have protection against the application to them of those acts. Where responsibility for the implementation of those acts lies with the European Union institutions, those persons are entitled to bring a direct action before the Courts of the European Union against the implementing measures under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead, pursuant to Article 277 TFEU, in support of that action, the illegality of the general act at issue. Where that implementation is a matter for the Member States, such persons may plead the invalidity of the European Union act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (see, to that effect, Les Verts v Parliament , paragraph 23).
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65. Thus, even if the answer to the question referred leaves no scope for any reasonable doubt, that question does not thereby become inadmissible.
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40. As regards the establishment of thresholds or criteria, it must be borne in mind that, indeed, Article 4(2)(b) of Directive 85/337 confers a measure of discretion on the Member States in that regard. However, that discretion is limited by the obligation set out in Article 2(1) of the directive to make projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment subject to an impact assessment (judgment in Salzburger Flughafen , C‑244/12, EU:C:2013:203, paragraph 29).
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29. As regards the establishment of thresholds or criteria to determine whether such a project must be made subject to an environmental impact assessment, it must be borne in mind that, indeed, Article 4(2)(b) of Directive 85/337 confers a measure of discretion on the Member States in that regard. However, that discretion is limited by the obligation set out in Article 2(1) of the directive to make projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment subject to an impact assessment (see, to that effect, WWF and Others , paragraph 36 and the case-law cited).
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26. En ce qui concerne la charge de la preuve, il convient de rappeler que, dans le cadre d’une procédure en manquement, en vertu de l’article 226 CE, il incombe à la Commission d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, notamment, arrêts du 25 mai 1982, Commission/Pays‑Bas, 96/81, Rec. p. 1791, point 6, et du 12 septembre 2000, Commission/Pays‑Bas, C‑408/97, Rec. p. I‑6417, point 15).
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45. Since clause 5(1) of the FTW Framework Agreement applies only where there are successive fixed-term employment contracts or relationships (see, to that effect, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraphs 41 and 42), it is logical that the existence of a succession of fixed-term employment contracts or relationships will be relevant in respect of all measures taken on the basis of that clause.
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41. Here it is to be noted that Clause 5(1) of the Framework Agreement is supposed to ‘prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.
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14 In the first place, it is not a general tax, since it applies only to a limited category of goods and services. Secondly, it is not charged at each stage of the production and distribution process, since it is imposed annually on the aggregate receipts of taxable undertakings. Thirdly, it is not levied on the value added at each transaction but on the gross amount of all receipts, and it is therefore impossible to establish precisely what fraction of the tax charged on each sale or service may be regarded as having been passed on to the consumer.
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54 It was in that context that the Court observed, in paragraphs 29 and 30 of Taflan-Met, comparing Regulations No 1408/71 and its implementing regulation, No 574/72, with Decision No 3/80, that, even though the Decision refers specifically to certain provisions of the two regulations, the Decision does not contain a large number of precise, detailed provisions, deemed indispensable for the purpose of implementing Regulation No 1408/71 within the Community. It emphasised in paragraph 32 in particular that, whilst Decision No 3/80 sets out the fundamental principle of aggregation for the branches sickness and maternity, invalidity, old age, death grants and family benefits by reference to Regulation No 1408/71, supplementary implementing measures of the kind set out in Regulation No 574/72 must be adopted before that principle can be applied. The Court pointed out, at paragraphs 35 and 36, that such measures as well as detailed provisions relating, inter alia, to prevention of overlapping benefits and to determination of the applicable legislation, appear only in the proposal for a Council (EEC) Regulation implementing within the European Economic Community Decision No 3/80 submitted by the Commission on 8 February 1983, which has not yet been adopted by the Council. It concluded that, until adoption of those implementing measures, the coordinating rules in Decision No 3/80 on which the plaintiffs had based their claims could not be relied on by them directly before the national courts of a Member State.
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34 Thus, on 8 February 1983 the Commission submitted a proposal for a Council Regulation implementing within the European Economic Community Decision No 3/80 (OJ 1983 C 110, p. 1).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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23. The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a) whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;
(b) the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the:
– first undertaking to meet point 21: a reduction of 30‑50%,
– second undertaking to meet point 21: a reduction of 20‑30%,
– subsequent undertakings that meet point 21: a reduction of up to 20%.
In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
7. Point 29 of the 2002 Leniency Notice provides:
‘The Commission is aware that this notice will create legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission.’
Background to the dispute and the decision at issue
8. Kone Oyj is a global service and engineering undertaking, established in Finland, which sells, manufactures, installs, maintains and modernises elevators and escalators and services automatic building doors. Kone Oyj operates through its national subsidiaries, such as Kone GmbH in Germany and Kone BV in the Netherlands.
9. In the summer of 2003, the Commission received information concerning the possible existence of a cartel among the principal European manufacturers of elevators and escalators engaged in business activities in the European Union, namely Kone Belgium SA, Kone GmbH, Kone Luxembourg Sàrl, Kone BV Liften en Roltrappen, Kone Oyj, Otis SA, Otis GmbH & Co. OHG, General Technic-Otis Sàrl, General Technic Sàrl, Otis BV, Otis Elevator Company, United Technologies Corporation, Schindler SA, Schindler Deutschland Holding GmbH, Schindler Sàrl, Schindler Liften BV, Schindler Holding Ltd as well as ThyssenKrupp Liften Ascenseurs NV, ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH, ThyssenKrupp Elevator AG, ThyssenKrupp AG, ThyssenKrupp Ascenseurs Luxembourg Sàrl and ThyssenKrupp Liften BV (together referred to as ‘the ThyssenKrupp group’). Early in 2004, the Commission carried out inspections at the premises of those undertakings in Belgium, Germany, Luxembourg and the Netherlands.
10. Leniency applications were made by those undertakings. On 2 February 2004 the Kone group submitted such an application under point 8(b) of the 2002 Leniency Notice, which included information concerning Belgium and which it subsequently supplemented with, inter alia, information concerning Germany (on 12 and 14 February 2004) and information concerning the Netherlands (on 19 July 2004).
11. In the decision at issue, the Commission found that the undertakings mentioned in paragraph 9 of the present judgment together with Mitsubishi Elevator Europe BV had participated in four single, complex and continuous infringements of Article 81 EC in four Member States, sharing markets by agreeing or concerting to allocate tenders and contracts for the sale, installation, service and modernisation of elevators and escalators.
12. The Kone group was granted immunity from fines in respect of the infringements in Belgium and Luxembourg. However, under Article 2(2) and (4) of the decision at issue, so far as the infringements in Germany and the Netherlands were concerned, fines of EUR 62 370 000 and EUR 79 750 000 respectively were imposed jointly and severally on Kone Oyj and its national subsidiaries.
Proceedings before the General Court and the judgment under appeal
13. By application lodged at the Registry of the General Court on 8 May 2007, the Kone group brought an action challenging (i) the legality of Article 2(2) of the decision at issue, which imposed fines on the undertakings concerned for the infringements in Germany, and (ii) the legality of Article 2(4) of that decision, which imposed fines on the undertakings concerned for the infringements in the Netherlands.
14. In support of the action, the Kone group put forward three pleas in law. Those pleas alleged (i) infringement of the Commission Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [ECSC] (OJ 1998 C 9, p. 3) and breach of the principle of proportionality in the setting of the starting amounts of the fines, (ii) infringement of the 2002 Leniency Notice and of the principles of the protection of legitimate expectations, equal treatment and the rights of the defence and (iii) infringement of the principles of the protection of legitimate expectations and equal treatment on the occasion of the calculation of the reduction of the fines granted for cooperation outside the framework of the 2002 Leniency Notice.
15. By the judgment under appeal, the General Court dismissed that action and ordered the Kone group to pay the costs.
Forms of order sought
16. The appellants claim that the Court should:
– set aside the judgment under appeal;
– annul Article 2(2) of the decision at issue in so far as it imposes a fine on Kone Oyj and Kone GmbH, and impose either no fine or a fine at a lower amount than determined in that decision;
– annul Article 2(4) of the decision at issue in so far as it imposes a fine on Kone Oyj and Kone BV, and set the fine at a lower amount than determined in that decision; and
– order the Commission to pay the costs.
17. The Commission contends that the Court of Justice should:
– dismiss the appeal; and
– order the appellants to pay the costs.
The appeal
18. The appellants raise six grounds of appeal in support of the form of order sought, which allege (i) misinterpretation of point 8(b) of the 2002 Leniency Notice, (ii) misinterpretation of point 8(a) of that notice, (iii) infringement of the principle of the protection of legitimate expectations, (iv) misinterpretation of points 21 to 23 of the 2002 Leniency Notice, (v) infringement of the principle of equal treatment and (vi) infringement of the right to a fair trial, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
19. The appellants maintain, in several of their grounds of appeal, that the review carried out by the General Court in the judgment under appeal was marginal and cannot be regarded as a ‘full review’. In order to address this criticism, which is made in relation to a number of the grounds of appeal, it is appropriate to recall, before going on to consider those grounds, the underlying principles of both the review of legality carried out by the European Union judicature and the unlimited jurisdiction which the latter is afforded in certain circumstances.
Preliminary considerations
20. The principle of effective judicial protection is a general principle of European Union (EU) law to which expression is now given by Article 47 of the Charter and which corresponds, in EU law, to Article 6(1) of the ECHR (see, inter alia, Case C‑501/11 P Schindler Holding and Others v Commission [2013] ECR I‑0000, paragraph 36 and the case-law cited).
21. Whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (see Case C‑571/10 Kamberaj [2012] ECR I‑0000, paragraph 62, and Case C‑617/10 Åkerberg Fransson [2013] ECR I‑0000, paragraph 44).
22. As the Court of Justice has already observed in paragraph 35 of Schindler Holding and Others v Commission , the European Court of Human Rights has held that, in administrative proceedings, the obligation to comply with Article 6 of the ECHR does not preclude a ‘penalty’ from being imposed by an administrative authority in the first instance. According to the European Court of Human Rights, compliance with that provision requires, however, that decisions taken by administrative authorities which do not themselves satisfy the requirements laid down in Article 6(1) of the ECHR be subject to subsequent review by a judicial body that has full jurisdiction. The characteristics of such a body include, according to the same judgment of the European Court of Human Rights, the power to quash in all respects, on questions of fact and law, the decision of the body below. The judicial body must in particular have jurisdiction to examine all questions of fact and law relevant to the dispute before it (judgment of the European Court of Human Rights in A. Menarini Diagnostics S.R.L. v. Italy , no. 43509/08, 27 September 2011, § 59).
23. Ruling on the principle of effective judicial protection, a general principle of EU law to which expression is now given by Article 47 of the Charter, the Court of Justice has held that, in addition to the review of legality provided for by the FEU Treaty, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (Case C‑386/10 P Chalkor v Commission [2011] ECR I‑0000, paragraph 63, and Schindler Holding and Others v Commission , paragraph 36).
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44. As regards, first, the conclusions to be drawn by a national court from a conflict between national law and the ECHR, it is to be remembered that whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law. Consequently, European Union law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law (see, to this effect, Case C-571/10 Kamberaj [2012] ECR, paragraph 62).
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97 Moreover, contrary to the claims made both by LVM and DSM and by Elf Atochem, the mere existence of differences between the two successive decisions
of the Commission did not in itself render new hearings necessary, since those differences did not involve the consideration of new objections.
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21. It should be noted first of all that under the system established by the Regulation all the competent authorities to which notification of a proposed shipment of waste is addressed must check that the classification by the notifier is consistent with the provisions of the Regulation and object to a shipment which is incorrectly classified (Case C-6/00 ASA [2002] ECR I-1961, paragraph 40).
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40 However, it follows from the system established by the Regulation that all the competent authorities to which that notification is addressed must check that the classification by the notifier is consistent with the provisions of the Regulation and object to a shipment which is incorrectly classified.
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54. In those circumstances, the answer to the question referred must be that Article 5(1)(a) of the directive must be interpreted as meaning that a sign is identical with the trade mark where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer.
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53
In addition, nothing precludes medicinal products derived from human blood or human plasma from coming under the definition of ‘goods’ for the purposes of the provisions of the FEU Treaty on the free movement of goods, given the particularly broad interpretation of that term in the Court’s case-law on, inter alia, medicinal products and blood and blood components (see, to that effect, judgments of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraphs 27 to 32, and of 9 December 2010, Humanplasma, C‑421/09, EU:C:2010:760, paragraphs 27 and 30). It follows that medicinal products derived from human blood or human plasma are ‘goods’ for the purpose of Article 34 TFEU.
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29. The Court of Justice has none the less made clear that national provisions restricting or prohibiting certain selling arrangements which, first, apply to all relevant traders operating within the national territory and, second, affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States are not liable to hinder, directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville line of case‑law (see, to that effect, Keck and Mithouard , paragraph 16).
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51. If the application is accepted, they re-examine the declaration and assess whether the declarant’s claims are well founded, in the light of the facts notified.
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48. Regarding Troostwijk’s second argument with regard to the compatibility of the legislation in question with freedom of expression, it should be recalled that, according to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37; Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25; and Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 71).
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41 With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth questions, it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories (see, in particular, the judgment in Case C-4/73 Nold v Commission [1974] ECR 491, paragraph 13). The European Convention on Human Rights has special significance in that respect (see in particular Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). It follows that, as the Court held in its judgment in Case C-5/88 Wachauf v Federal Republic of Germany [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed.
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45. If the opposite were true, the tariff classification of the imported components would depend on a fact which not intrinsic to those goods, since the customs authorities are not in a position to ascertain whether components which were not presented to customs have to be worked or not before being capable of assembly with the imported components, which would undermine the objective of ease of verification by the customs and legal certainty which must govern that classification.
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22. As regards, next, transactions which are specific to the activities of collective investment undertakings, it follows from Article 1(2) of Directive 85/611 that the transactions carried out by UCITS consist in the collective investment in transferable securities of capital raised from the public. With the capital provided by subscribers when they purchase units, UCITS assemble and manage, on behalf of the subscribers and for a fee, portfolios consisting of transferable securities (see, to this effect, Case C‑8/03 BBL [2004] ECR I‑10157, paragraph 42; Abbey National , paragraph 61; and Case C‑44/11 Deutsche Bank [2012] ECR I‑0000, paragraph 32). Functions specific to collective investment undertakings include, apart from investment management functions, functions for administering the collective investment undertakings themselves, such as those set out, under the heading ‘Administration’, in Annex II to Directive 85/611 as amended by Directive 2001/107 (see Abbey National , paragraph 64).
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61. Next, it follows from Article 1(2) of Directive 85/611 that the transactions carried out by UCITS consist in the collective investment in transferable securities of capital raised from the public. With the capital provided by subscribers when they purchase shares, UCITS assemble and manage, on behalf of the subscribers and for a fee, portfolios consisting of transferable securities (see Case C-8/03 BBL [2004] ECR I-10157, paragraph 42).
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35 If, as in the main proceedings in the present cases, the grant of child-raising allowance ° which is a family benefit ° were subject to the condition that the spouse of a worker, who is not resident in Germany, must be employed within the territory to which the BErzGG applies, the worker could be deterred from exercising his right to freedom of movement.
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30. That objective can be attained both in the situation of a parent company which is resident in a Member State and holds sub-subsidiaries also resident in that State through a subsidiary which is itself resident, and in the situation of a parent company which is resident in the same Member State and holds sub-subsidiaries also resident in that State, but through one or more subsidiaries established in another Member State (see, to this effect, Papillon EU:C:2008:659, paragraph 29).
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29. That objective can be attained both in the situation of a parent company which is resident in a Member State and holds sub-subsidiaries also resident in that State through a subsidiary which is itself resident, and in the situation of a parent company which is resident in the same Member State and holds sub-subsidiaries also resident in that State, but through a subsidiary established in another Member State.
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54. Next, in paragraph 60 of the judgment in Mukarubega (EU:C:2014:2336), the Court held that, given that a return decision is closely linked, under Directive 2008/115, to the determination that a stay is illegal, the right to be heard cannot be interpreted as meaning that, where a competent national authority is contemplating the simultaneous adoption of a decision determining a stay to be illegal and a return decision, that authority should necessarily hear the person concerned so as to permit that person to present his/her point of view specifically on the return decision, since that person had the opportunity effectively to present his/her point of view on the question of whether the stay was illegal and whether there were grounds which could, under national law, entitle that authority to refrain from adopting a return decision.
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43. In that context, there is no need, for the purposes of assessing those characteristics and, accordingly, for the purposes of interpreting Article 8(2) of Directive 2009/54, to refer to the notions of ‘aquifer’ and ‘body of groundwater’ used in Directive 2000/60. It is apparent from Article 1 of that directive and the case-law of the Court (see, to that effect, judgments in Commission v Luxembourg , C‑32/05, EU:C:2006:749, paragraph 41, and Commission v Germany , C‑525/12, EU:C:2014:2202, paragraph 50) that the objectives pursued by Directive 2000/60 differ from those pursued by Directive 2009/54. Whereas the objectives pursued by Directive 2000/60 are essentially environmental, Directive 2009/54 is intended to protect the health of consumers, to prevent consumers from being misled and to ensure fair trading. Accordingly, the provisions of Directive 2000/60 cannot be regarded as relevant for the interpretation requested in the present case (see, by analogy, judgment in Møller , C‑585/10, EU:C:2011:847, paragraph 37).
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41. As regards the present case, it must be noted that Directive 2000/60 is a framework directive adopted on the basis of Article 175(1) EC. It establishes the common principles and an overall framework for action in relation to water protection and coordinates, integrates and, in a longer perspective, develops the overall principles and structures for protection and sustainable use of water in the European Community. The common principles and overall framework for action which it lays down are to be developed subsequently by the Member States, which are to adopt a series of individual measures in accordance with the timescales laid down in the directive. However, the directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water.
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37
In that respect, it must be recalled that the question whether the General Court could, properly in law, conclude that the Commission had failed in its duty to state reasons is a question of law subject to the review of the Court of Justice on appeal (see, to that effect, judgments of 6 November 2008 in Netherlands v Commission, C‑405/07 P, EU:C:2008:613, paragraph 44; 3 September 2009 in Moser Baer India v Council, C‑535/06 P, EU:C:2009:498, paragraph 34, and 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 108).
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41. In that regard, it is for the competent national authorities to assess whether the knowledge acquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession of the knowledge which is lacking ( Vlassopoulou , paragraph 20; Fernández de Bobadilla , paragraph 33; and Morgenbesser , paragraph 71).
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71. By the same token, the competent national authorities must measure whether the learning and skills acquired in the host Member State, either through a course of study or by way of practical experience, sufficiently demonstrate that the missing knowledge and qualifications have in the meantime been acquired ( Vlassopoulou , paragraph 20).
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18 In that regard it must be observed, first, that it is settled case-law that the granting of an interest-free loan to a company allows the company to have capital available without having to bear its cost; that the resultant saving in interest leads to an increase in its assets by allowing the company to avoid expenditure which it would otherwise have to bear; and that, by saving it that expense, the advantage of such a loan helps to strengthen the company's economic potential, and must therefore be regarded as likely to increase the value of the rights in the recipient company (Trave Schiffahrts-Gesellschaft, cited above, paragraphs 12 and 14, and Case C-287/94 Frederiksen [1996] ECR I-4581, paragraphs 12 and 13).
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25. In that regard, whilst it is established that EU law respects the power of the Member States to organise their social security systems and that, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits, the fact nevertheless remains that, when exercising that power, Member States must comply with EU law (see, to that effect, judgments in Watts , C‑372/04, EU:C:2006:325, paragraph 92 and the case-law cited, and Somova , C‑103/13, EU:C:2014:2334, paragraphs 33 to 35 and the case-law cited).
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34. Therefore, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine, in particular, the conditions for entitlement to benefits (judgment in Salgado González , EU:C:2013:86, paragraph 36 and the case-law cited).
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27 Consequently, an action for annulment brought by the Parliament against an act of the Council or the Commission is admissible provided that the action seeks only to safeguard its prerogatives and that it is founded only on submissions alleging their infringement . Provided that condition is met, the Parliament' s action for annulment is subject to the rules laid down in the Treaties for actions for annulment brought by the other institutions .
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11 Third, in Greece v Commission, cited above, and in Case C-61/95 Greece v Commission [1998] ECR I-207, paragraph 12, the Court has already rejected the Greek Government's argument that it was absolutely impossible to establish a register of olive cultivation. In fact the Government did not raise those arguments until after the date laid down in Regulation No 3453/80 and did not make any approach to the Community authorities to vary that date (see, in that regard, Case C-353/92 Greece v Council [1994] ECR I-3411, paragraph 39).
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12 In the present case, it follows from the findings in the summary report that animal feed was managed by KYDEP in implementation of a State monopoly with the costs incurred, in particular the losses on sales of those products, being completely covered by the State budget. According to the Commission, selling below cost constitutes an illegal national aid which, if the products are exported, is added to the Community refund. The effect of that lowering of the cost price of the feed was such that in a normal situation, without any national aid, the products could not have been exported, because of their high price.
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31
With regard to the first paragraph of Article 17 of that convention, which was replaced by Article 23 of the Brussels I Regulation, the Court held that a jurisdiction clause, which serves a procedural purpose, is governed by the provisions of that convention, whose aim is to establish uniform rules of international jurisdiction (judgment of 3 July 1997 in Benincasa, C‑269/95, EU:C:1997:337, paragraph 25).
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22. It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. In that light, the Court may have to reformulate the questions referred to it (judgments in Krüger , C‑334/95, EU:C:1997:378, paragraphs 22 and 23, and Byankov , C‑249/11, EU:C:2012:608, paragraph 57).
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57. In the context of the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. In that light, the Court may have to reformulate the questions referred to it (see, inter alia, Case C-334/95 Krüger [1997] ECR I-4517, paragraphs 22 and 23, and Case C-243/09 Fuß [2010] ECR I-9849, paragraph 39 and case-law cited).
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26 It must be inferred from the foregoing that, if that taxable person incurs expenditure in a Member State other than the Member State of establishment for the purposes both of his taxed transactions and his exempt transactions in the latter State, he has a right of partial refund in the first State.
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29. As noted by the Advocate General in point 24 of his Opinion, the transposition of Article 12(1) of the Directive requires the Member States not only to adopt a comprehensive legislative framework but also to implement concrete and specific protection measures (see, to that effect, Case C‑103/00 Commission v Greece [2002] ECR I‑1147, paragraphs 34 to 39).
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37 Moreover, the acts were not isolated occurrences. As regards the use of mopeds on the breeding beaches, this is clear from the Greek Government's assertion that nocturnal supervision of the eastern part of beach at Laganas was, at the material time, particularly difficult to ensure owing to the length of the beach, the high number of access points and the low number of supervisors. As far as the presence of small boats in the relevant sea area is concerned, it should be noted that these were observed on two visits to Zakinthos by Commission officials, as stated at paragraphs 8 and 13 of this judgment.
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17 IN THOSE PROCEDURAL CIRCUMSTANCES IT MUST BE HELD THAT THE TWO ACTIONS HAVE THE SAME SUBJECT-MATTER, FOR THAT CONCEPT CANNOT BE RESTRICTED SO AS TO MEAN TWO CLAIMS WHICH ARE ENTIRELY IDENTICAL .
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20 It is also settled case-law that national legislation which restricts or is liable to restrict intra-Community trade must be proportionate to the objectives pursued and that those objectives must not be attainable by measures which are less restrictive of such trade (Joined Cases C-34/95, C-35/95 and C-36/95 KO v De Agostini and TV-Shop [1997] ECR I-3843, paragraph 45, and Case C-189/95 Franzén [1997] ECR I-5909, paragraph 75).
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45 In the latter case, it is for the national court to determine whether the ban is necessary to satisfy overriding requirements of general public importance or one of the aims listed in Article 36 of the EC Treaty if it is proportionate to that purpose and if those aims or requirements could not have been attained or fulfilled by measures less restrictive of intra-Community trade.
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121. Or, une telle répétition de comportements infractionnels d’un État membre, dans un secteur spécifique de l’action de l’Union, peut constituer un indicateur de ce que la prévention effective de la répétition future d’infractions analogues au droit de l’Union est de nature à requérir l’adoption d’une mesure dissuasive, telle que la condamnation au paiement d’une somme forfaitaire (arrêt Commission/Espagne, C‑184/11, EU:C:2014:316, point 78 et jurisprudence citée).
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23. That harmonisation makes it possible, in principle, to avoid double taxation in relations between Member States (see, to that effect, Case C‑392/05 Alevizos [2007] ECR I‑3505, paragraph 38).
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38. Moreover, whilst for the products referred to in Article 3(1) of Directive 92/12, the harmonisation carried out by that directive – particularly through the standardisation of requirements for levying excise duties in the Community, to ensure the establishment and functioning of the internal market (see the fourth recital in the preamble to Directive 92/12; see also Case C‑296/95 EMU Tabac and Others [1998] ECR I‑1605, paragraph 22; Case C‑325/99 Van de Water [2001] ECR I‑2729, paragraph 39; and Case C‑240/01 Commission v Germany [2004] ECR I‑4733, paragraph 36) – makes it possible to avoid double taxation in relations between Member States and therefore renders unnecessary the application to those products of the provisions of Directive 83/183 concerning exemptions from excise duty on imports (see recital 20 in the preamble to Directive 92/12), conversely, it applies differently for other products.
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21 Public service obligations may, of course, render the services provided by a given medical aid organisation less competitive than comparable services rendered by other operators not bound by such obligations, but that fact cannot prevent the activities in question from being regarded as economic activities.
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50. Cependant, les considérations de politique sociale, d’organisation de l’État, d’éthique, ou même les préoccupations de nature budgétaire qui ont eu ou qui ont pu avoir un rôle dans la fixation, par le législateur national, d’un régime tel que celui en cause, ne sauraient prévaloir si la pension n’intéresse qu’une catégorie particulière de travailleurs, si elle est directement fonction du temps de service accompli et si son montant est calculé sur la base du dernier traitement du fonctionnaire. La pension versée par l’employeur public est alors absolument comparable à celle que verserait un employeur privé à ses anciens salariés (arrêts précités Beune, point 45; Griesmar, point 30; Niemi, point 47, et Commission/Italie, point 37).
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45 On the other hand, considerations of social policy, of State organization, or of ethics or even budgetary preoccupations which influenced, or may have influenced, the establishment by the national legislature of a scheme such as the scheme at issue cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service and if its amount is calculated by reference to the civil servant' s last salary. The pension paid by the public employer is therefore entirely comparable to that paid by a private employer to his former employees.
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36. First, any divergent application of the rules in certain Member States cannot influence the interpretation of the Common Customs Code which is based on the wording of the tariff headings (Case C-120/90 Post [1991] ECR I-2391, paragraph 24).
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74
It should be noted in that regard that the information provided in requests for a preliminary ruling serves not only to enable the Court to provide useful answers to the questions submitted by the referring court, but also to ensure that the governments of the Member States and other interested parties have the opportunity to submit observations, in accordance with Article 23 of the Statute of the Court of Justice of the European Union (judgment of 10 November 2016, Private Equity Insurance Group, C‑156/15, EU:C:2016:851, paragraph 63, and, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 20).
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63
It should be noted in that regard that the information provided in requests for a preliminary ruling serves not only to enable the Court to provide useful answers to the questions submitted by the referring court, but also to ensure that the governments of the Member States and other interested parties have the opportunity to submit observations, in accordance with Article 23 of the Statute of the Court of Justice of the European Union (see, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 20, and order of 8 September 2016, Google Ireland and Google Italy, C‑322/15, EU:C:2016:672, paragraph 17).
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124. Le Tribunal ayant jugé, au point 305 de l’arrêt attaqué, que la Commission n’avait pas pu ouvrir la procédure formelle d’examen avant ladite date à défaut de disposer des informations nécessaires pour ouvrir la procédure formelle d’examen, les Cámaras de Comercio sont recevables à critiquer cette constatation, puisque celle-ci a été effectuée pour la première fois dans l’arrêt attaqué (voir arrêt du 21 février 2008, Commission/Girardot, C‑348/06 P, Rec. p. I‑833, point 50 et jurisprudence citée). En outre, la question de savoir si c’est à bon droit que le Tribunal a fait ladite constatation est liée à celle du caractère raisonnable ou non de la durée de la procédure préliminaire d’examen, qui concerne une question de droit pouvant être soumise au contrôle de la Cour dans le cadre d’un pourvoi et qui, partant, est recevable.
– Sur le fond
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29. By contrast, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States for the purposes of the line of case-law beginning with Dassonville , on condition that those provisions apply to all relevant traders operating within the national territory and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States (see, inter alia, Keck and Mithouard , paragraph 16; Case C‑292/92 Hünermund and Others [1993] ECR I‑6787, paragraph 21; and Case C‑434/04 Ahokainen and Leppik [2006] ECR I‑9171, paragraph 19). Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products (see Keck and Mithouard , paragraph 17).
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16 By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
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Or, il y a lieu de rappeler que, conformément à l’article 256, paragraphe 1, TFUE et à l’article 58, premier alinéa, du statut de la Cour de justice de l’Union européenne, le pourvoi est limité aux questions de droit. Le Tribunal est seul compétent pour constater et apprécier les faits pertinents ainsi que pour apprécier les éléments de preuve. L’appréciation de ces faits et éléments de preuve ne constitue donc pas, sous réserve du cas de leur dénaturation, une question de droit soumise, comme telle, au contrôle de la Cour dans le cadre d’un pourvoi (arrêt du 9 octobre 2014, ICF/Commission, C‑467/13 P, non publié, EU:C:2014:2274, point 26).
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81. The first point to note in that regard is that the national legislation at issue in the main proceedings clearly establishes that the benefits provided by ELGA are granted through State resources and are imputable to the State within the meaning of the Court's case-law (see, inter alia , Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 24).
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24 However, for advantages to be capable of being categorised as aid within the meaning of Article 87(1) EC, they must, first, be granted directly or indirectly through State resources (see Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, paragraph 19; Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, paragraph 16; Joined Cases C-52/97 to C-54/97 Viscido and Others v Ente Poste Italiane [1998] ECR I-2629, paragraph 13; Case C-200/97 Ecotrade v Altiformi e Ferriere di Servola [1998] ECR I-7907, paragraph 35; Case C-295/97 Piaggio v International Factors Italia (Ifitalia), Dornier Luftfahrt, Ministero della Difesa [1999] ECR I-3735, paragraph 35; and Case C-379/98 PreussenElektra v Schleswag [2001] ECR I-2099, paragraph 58) and, second, be imputable to the State (Van der Kooy, paragraph 35; Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 11; Case C-305/89 Italy v Commission, cited above, paragraph 13).
The first part of the first plea in law
Arguments of the parties
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28. It is clear that, by preventing criminal activity and distortions of competition in the public contracts sector, a measure such as the obligation to declare acceptance of that type of legality protocol appears to be such as to strengthen equal treatment and transparency in procurement procedures. In addition, inasmuch as that obligation is incumbent upon every candidate or tenderer without distinction, it does not conflict with the principle of non-discrimination.
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36 In that connection, it must be borne in mind that a person who has the intention, confirmed by objective evidence, to commence independently an economic activity within the meaning of Article 4 of the Sixth Directive and who incurs the first investment expenditure for those purposes must be regarded as a taxable person. Acting in that capacity, he has therefore, in accordance with Article 17 et seq. of the Sixth Directive, the right immediately to deduct the VAT payable or paid on the investment expenditure incurred for the purposes of the transactions which he intends to carry out and which give rise to the right to deduct, without having to wait for the actual operation of his business to begin (Ghent Coal Terminal, cited above, paragraph 17, and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 47).
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47 It follows that a person who has the intention, confirmed by objective evidence, to commence independently an economic activity within the meaning of Article 4 of the Sixth Directive and who incurs the first investment expenditure for those purposes must be regarded as a taxable person. Acting in that capacity, he has therefore, in accordance with Article 17 et seq. of the Sixth Directive, the right immediately to deduct the VAT payable or paid on the investment expenditure incurred for the purposes of the transactions which he intends to carry out and which give rise to the right to deduct, without having to wait for the actual exploitation of his business to begin.
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18 According to settled case-law, where provisions of national law are incompatible with Community law, the national court is under a duty to give full effect to Community law by disapplying on its own initiative conflicting provisions of national law (Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629).
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56. Regulation No 44/2001 does not set out in which circumstances the jurisdiction of the court or tribunal first seised is to be regarded as ‘established’ within the meaning of Article 27 of that regulation (judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances , C‑1/13, EU:C:2014:109, paragraph 31). However, as stated in paragraph 48 of this judgment, the procedural rule laid down in that article is based on the chronological order in which the courts or tribunals concerned have been seised.
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31. Next, as the French Government and the European Commission rightly observed, Regulation No 44/2001 does not set out in what circumstances the jurisdiction of the court first seised must be regarded as ‘established’ within the meaning of Article 27 thereof.
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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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51. It must also be recalled that it is not all third-country nationals who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are a ‘family member’ within the meaning of Article 2(2) of that directive of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (judgment in Iida , C‑40/11, EU:C:2012:691, paragraph 51 and the case-law cited).
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51. Thus not all third-country nationals derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are a ‘family member’ within the meaning of Article 2(2) of that directive of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (Case C‑127/08 Metock and Others [2008] ECR I‑6241, paragraph 73, and Case C‑256/11 Dereci and Others [2011] ECR I‑11315, paragraph 56).
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49 However, by way of exception to that principle, acts tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the Community legal order must be treated as having no legal effect, even provisional, that is to say that they must be regarded as legally non-existent. The purpose of this exception is to maintain a balance between two fundamental, but sometimes conflicting, requirements with which a legal order must comply, namely stability of legal relations and respect for legality.
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33. A comparison of those two provisions prompts the finding that the ‘increase in the capital’ referred to in Article 4(1)(c) of Directive 69/335 entails a formal increase in a company’s capital by means of either an issue of new shares or an increase in the nominal value of the existing shares (see, to that effect, Case 270/81 Felicitas Rickmers-Linie [1982] ECR 2771, paragraph 15, and Case C-494/03 Senior Engineering Investments [2006] I-0000, paragraph 33).
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15 ACCORDING TO ITS ORDINARY MEANING ' ' NOMINAL AMOUNT ' ' REFERS TO AN AMOUNT , IN PRINCIPLE UNCHANGEABLE AND EXPRESSED IN CASH , WHICH MAY BE DIFFERENT FROM THE TRUE ECONOMIC VALUE . IN THE CONTEXT OF GENUINE CAPITAL COMPANIES , THE EXPRESSION IS USED TO DENOTE THE QUANTIFIED VALUE OF THE MEMBER ' S COMPULSORY CONTRIBUTION TO THE CAPITAL COMPANY , WHICH CANNOT BE WAIVED EITHER BY THE COMPANY OR BY THE OTHER MEMBERS , AND WHICH CHARACTERIZES IN DURABLE FASHION THE RELATIONSHIP BETWEEN THE MEMBER AND THE COMPANY .
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37. It follows that, since the electrical, electromechanical and electronic games cannot be considered to be games of chance, it cannot be accepted, in contrast to the contention of the Hellenic Republic, that the findings regarding games of chance upheld by the Court in Schindler and Läärä may be applied to electric, electromechanic and electronic games.
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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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10 It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23).
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70. As is evident from Recital 2 in the preamble to Regulation No 2201/2003, the principle of mutual recognition of judicial decisions is the cornerstone for the creation of a genuine judicial area.
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33. Recourse to that provision is also possible if the aim is to prevent the emergence of such obstacles to trade resulting from the divergent development of national laws. However, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them ( Germany v Parliament and Council , paragraph 38 and the case-law cited, and Case C‑301/06 Ireland v Parliament and Council [2009] ECR I-593, paragraph 64; see also, to that effect, United Kingdom v Parliament and Council , paragraphs 60 to 64).
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38. It is also settled case-law that, although recourse to Article 95 EC as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them (Case C-350/92 Spain v Council [1995] ECR I-1985, paragraph 35; Case C‑377/98 Netherlands v Parliament and Council [2001] ECR I-7079, paragraph 15; British American Tobacco (Investments) and Imperial Tobacco , paragraph 61; Arnold André , paragraph 31; Swedish Match , paragraph 30; and Alliance for Natural Health and Others , paragraph 29).
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24. En effet, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, en ce sens, arrêts du 26 avril 2007, Commission/Italie, C‑135/05, Rec. p. I‑3475, point 36, et du 10 avril 2008, Commission/Italie, C‑442/06, non encore publié au Recueil, point 42).
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25. The Court did not give a ruling on whether the Member States are competent to enact legislation imposing reporting obligations on milk producers established within their territory that go beyond those in the provision to be interpreted since that issue was not the subject-matter of the question referred ( Slob, paragraph 30).
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30. The issue of whether the Member States are competent to enact legislation imposing reporting obligations on milk producers within their territory that go beyond those in the provision to be interpreted, which was examined at the hearing, is not the subject-matter of the question referred.
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32. Nevertheless, it is settled case-law that the term ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001 covers all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article 5(1)(a) thereof (see, as regards the interpretation of the Brussels Convention, Case 189/87 Kalfelis [1988] ECR 5565, paragraph 18; Case C‑261/90 Reichert and Kockler [1992] ECR I‑2149, paragraph 16; Case C‑51/97 Réunion européenne and Others [1998] ECR I‑6511, paragraph 22; and Case C‑334/00 Tacconi [2002] ECR I‑7357, paragraph 21).
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46. It is not unusual that certain sectors of activity, in particular sectors involving public service utilities, such as those at issue in the main proceedings, are subject to rules which may have the effect of limiting the financial risks entailed. First, the detailed rules of public law, to which the economic and financial operation of the service is subject, facilitate the supervision of how that service is operated, and scale down the factors which may threaten transparency and distort competition. Second, it must remain open to the contracting authorities, acting in all good faith, to ensure the supply of services by way of a concession, if they consider that to be the best method of ensuring the public service in question, even if the risk linked to such an operation is limited ( Eurawasser , paragraphs 72 to 74).
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74. Second, it must remain open to the contracting authorities, acting in all good faith, to ensure the supply of services by way of a concession, if they consider that to be the best method of ensuring the public service in question, even if the risk linked to such an operation is limited.
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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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37. Those reasons – given as alternative grounds by the Board of Appeal for refusing to take into account the evidence submitted late by Mr Rintisch – are capable of remedying the defect vitiating the contested decision only if they permit the inference that the Board of Appeal actually exercised its discretion under Article 74(2) of Regulation No 40/94, for the purposes of deciding, in a reasoned manner and having regard to all the relevant circumstances, whether it was necessary to take into account the evidence submitted to it late, in order to give its decision (see, to that effect, Case C‑610/11 P Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions [2013] ECR I‑0000, paragraph 110).
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110. Such general, categorical assertions do not in any way establish that the Board of Appeal effectively exercised the discretion conferred on it by Article 76(2) of Regulation No 207/2009, in order to decide, in giving proper reasons and taking account of all relevant facts, whether or not to take into account the additional evidence submitted to it in order to make the decision it is called upon to give (see, to that effect, OHIM v Kaul , paragraphs 43 and 68).
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En effet, il est constant que les travaux de confinement et de désaffectation de la décharge de Barranco de Sedases n’ont
pas été exécutés avant le 26 juin 2013 et que de tels travaux pour les autres décharges mentionnées au point 49 du présent
arrêt n’ont pas été exécutés avant le 25 mars 2013. D’ailleurs, le Royaume d’Espagne n’a pas avancé de raisons particulières
afin de motiver ce non-respect des délais fixés dans les avis motivés.
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27 As far as direct taxation is concerned, the Court has held, in cases relating to the taxation of income of natural persons, that the situations of residents and non-residents in a given State are not generally comparable, since there are objective differences between them from the point of view of the source of the income and the possibility of taking account of their ability to pay tax or their personal and family circumstances (Schumacker, cited above, paragraphs 31 to 32; Wielockx, cited above, paragraph 18; and Asscher, cited above, paragraph 41). However, it has explained that, in the case of a tax advantage denied to non-residents, a difference in treatment between the two categories of taxpayer might constitute discrimination within the meaning of the Treaty where there is no objective difference such as to justify different treatment on this point as between the two categories of taxpayers (Schumacker, cited above, paragraphs 36 to 38, and Asscher, cited above, paragraph 42).
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38 In the case of a non-resident who receives the major part of his income and almost all his family income in a Member State other than that of his residence, discrimination arises from the fact that his personal and family circumstances are taken into account neither in the State of residence nor in the State of employment.
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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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36. It is clear that the introduction of an EU-wide scheme for accounting and trading of carbon dioxide equivalent emission allowances was a legislative choice which translated a political orientation in a context of urgency in addressing serious environmental concerns, as evidenced by the Conclusions of the Council of the European Union of 8 March 2001, referred to in recital 1 in the preamble to Directive 2003/87. That legislative choice was, moreover, based on highly complex and lengthily debated economic and technical considerations, set out in Green Paper COM(2000) 87 of 8 March 2000. In order to contribute towards the fulfilment of their commitments by the European Union and its Member States under the Kyoto Protocol, the European Union legislature was thus led to consider itself the future, uncertain effects of its action (see, by analogy, Germany v Parliament and Council , paragraph 55).
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55 In assessing the need for the measure in question, it should be emphasized that the Community legislature was seeking to regulate an economically complex situation. Before the adoption of the Directive, deposit-guarantee schemes did not exist in all the Member States; moreover, most of them did not cover depositors with branches set up by credit institutions authorized in other Member States. The Community legislature therefore needed to assess the future, uncertain effects of its action. In so doing, it could choose between the general prevention of a risk and the establishment of a system of specific protection.
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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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20. In that regard, the Court notes that, in the context of the cooperation between the Court 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 subsequ ent 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‑306/99 BIAO [2003] ECR I‑1, paragraph 88; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 16; and Case C‑260/07 Pedro IV Servicios [2009] ECR I‑0000, paragraph 28).
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88. 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 (see, in particular, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, and Case C-218/00 Cisal [2002] ECR I-691, paragraph 18).
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15 It is for the Member States, which have to adopt appropriate measures to ensure their internal and external security, to take decisions on the organisation of their armed forces. It does not follow, however, that such decisions must fall entirely outside the scope of Community law.
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54. It must be stated at the outset that, according to settled case-law, it is clear from the Treaty context in which Article 211 EC must be placed and also from practical requirements that the concept of implementation must be given a wide interpretation. Since only the Commission is in a position to keep track of agricultural market trends and to act quickly when necessary, the Council may confer on it wide powers in that sphere. Consequently, the limits of those powers must be determined by reference amongst other things to the essential general aims of the market organisation (see Case C-478/93 Netherlands v Commission [1995] ECR I-3081, paragraph 30, and the case-law cited).
Thus, the Court has held that, in matters relating to agriculture, the Commission is authorised to adopt all the implementing measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council (see, in particular, Case 121/83 Zuckerfabrik Franken [1984] ECR 2039, paragraph 13; Netherlands v Commission , cited above, paragraph 31, and Case C-356/97 Molkereigenossenschaft Wiedergeltingen [2000] ECR I-5461, paragraph 24).
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31 Thus, the Court has held that, in matters relating to agriculture, the Commission is authorized to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council (Case 121/83 Zuckerfabrik Franken v Hauptzollamt Wuerzburg [1984] ECR 2039, paragraph 13).
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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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28 The first of those questions, as rephrased in paragraph 19 of this judgment, concerns the scope of Article 6(3) of Decision No 1/80, according to which the procedures for applying Article 6(1) are to be those established under national rules. It is settled case-law (Sevince, paragraph 22, and Kus, paragraph 31, cited above) that that provision merely clarifies the obligation incumbent on the Member States to take such administrative measures as may be necessary for the implementation of Article 6, without empowering them to make conditional or restrict the application of the precise and unconditional right which the provision grants to Turkish workers.
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31 That conclusion cannot be invalidated by the consideration that under Article 6(3) of Decision No 1/80 the procedures for applying paragraph (1) are to be established under national rules. As the Court has already observed in its judgment in Sevince (paragraph 22), Article 6(3) of Decision No 1/80 merely clarifies the obligation incumbent on the Member States to take such administrative measures as may be necessary for the implementation of that provision, without empowering them to make conditional or restrict the application of the precise and unconditional right which the provision grants to Turkish workers.
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75. Finally, the condition requiring the contracts at issue to be for pecuniary interest entails determining whether those contracts are of direct economic benefit to the local authority employers which conclude them (see, by analogy, Case C-451/08 Helmut Müller [2010] ECR I-0000, paragraphs 48 and 49).
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26. Article 46(1) EC allows restrictions justified on grounds of public policy, public security or public health. A certain number of overriding reasons in the public interest which may also justify such restrictions have been recognised by the case-law of the Court, including, in particular, the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling, as well as the general need to preserve public order ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 56).
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56. Article 46(1) EC allows restrictions justified on grounds of public policy, public security or public health. In addition, a certain number of overriding reasons in the public interest have been recognised by case-law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling, as well as the general need to preserve public order (see, to that effect, Placanica and Others , paragraph 46 and case-law cited).
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49. En effet, la compétence de la Cour dans le cadre d’un pourvoi est limitée à l’appréciation de la solution légale qui a été donnée aux moyens débattus devant les premiers juges (voir arrêt Commission/Brazzelli Lualdi e.a., précité, point 59). Partant, la Cour est uniquement compétente, dans le cadre d’une telle procédure, pour examiner si l’argumentation contenue dans le pourvoi identifie une erreur de droit dont serait entaché l’arrêt attaqué (voir, en ce sens, arrêts du 4 juillet 2000, Bergaderm et Goupil/Commission, C‑352/98 P, Rec. p. I‑5291, point 35, ainsi que du 30 septembre 2003, Eurocoton e.a./Conseil, C‑76/01 P, Rec. p. I‑10091, point 47).
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87. In this regard, it suffices to point out that, even though, in the areas in which the Community does not have competence, the Member States remain, in principle, free to lay down the conditions for the existence and exercise of the rights at issue, they must nevertheless exercise that competence consistently with Community law (see, by analogy, as regards social security, Case C‑120/95 Decker [1998] ECR I‑1831, paragraphs 22 and 23, and Case C‑158/96 Kohll [1998] ECR I‑1931, paragraphs 18 and 19; as regards direct taxation, Case C‑334/02 Commission v France [2004] ECR I‑2229, paragraph 21, and Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29).
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18 In the absence of harmonisation at Community level, it is therefore for the legislation of each Member State to determine, first, the conditions concerning the right or duty to be insured with a social security scheme (Case 110/79 Coonan v Insurance Officer [1980] ECR 1445, paragraph 12, and Case C-349/87 Paraschi v Landesversicherungsanstalt Württemberg [1991] ECR I-4501, paragraph 15) and, second, the conditions for entitlement to benefits (Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira v Bundesanstalt für Arbeit [1997] ECR I-511, paragraph 36).
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38
The concept of ‘person concerned’, within the meaning of Article 212a of the Customs Code, must be understood, in the light of the wording of that provision, as referring to any natural or legal person who is considered to be a customs debtor under any of Articles 202 to 205 of that code, in particular on the ground that that person, by his actions, was the cause of the unlawful introduction of goods into the customs territory of the European Union.
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25. It is settled case-law that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine enjoy a presumption of relevance (Case C‑300/01 Salzmann [2003] ECR I‑4899, paragraphs 29 and 31, and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25, and van der Weerd and Others , paragraph 22).
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25. As regards Mr Cipolla’s pleas of inadmissibility, it should be recalled that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I-4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39, and Case C-466/04 Acereda Herrera [2006] ECR I-0000, paragraph 48).
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24 By annulling the contested decision for refusing to consider the arguments relating to Article 7(3) of Regulation No 40/94 and in doing so on that ground alone, the contested judgment allowed that part of the decision relating to the compatibility of BABY-DRY with the requirements of Article 7(1)(b) and (c) of the regulation to stand.
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67
It is inherent in that complete system of legal remedies and procedures that persons bringing proceedings must, when an action is brought before a national court or tribunal, have the right to challenge the legality of provisions contained in European Union acts on which a decision or national measure adopted in respect of them is based, pleading the invalidity of that decision or measure, in order that the national court or tribunal, having itself no jurisdiction to declare such invalidity, consults the Court on that matter by means of a reference for a preliminary ruling, unless those persons unquestionably had the right to bring an action against those provisions on the basis of Article 263 TFEU and failed to exercise that right within the period prescribed (see, to that effect, judgments of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 35 and 36, and of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 45 and 46).
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35 It is true, however, that Article 241 EC expresses a general principle of law under which an applicant must, in proceedings brought under national law against the rejection of his application, be able to plead the illegality of a Community measure on which the national decision adopted in his regard is based, and the question of the validity of that Community measure may thus be referred to the Court in proceedings for a preliminary ruling (Case 216/82 Universität Hamburg [1983] ECR 2771, paragraphs 10 and 12).
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7. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 30 janvier 2002, Commission/Grèce, C-103/00, Rec. p. I‑1147, point 23, et du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15).
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110
Such green energy support schemes, whose production costs seem to be still quite high as compared with the costs of electricity produced from non-renewable energy sources, are inherently designed in particular to foster, from a long-term perspective, investment in new installations, by giving producers certain guarantees about the future marketing of their green electricity (see judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 103).
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103. In that regard, it need only be observed that a green energy support scheme, whose production costs seem — as the Swedish Government and the Commission, in particular, have maintained — to be still quite high as compared with the costs of electricity produced from non-renewable energy sources, is inherently designed to foster, from a long-term perspective, investment in new installations, by giving producers certain guarantees about the future marketing of their green electricity. Accordingly, the effectiveness of such a scheme requires by definition a measure of continuity sufficient, in particular, to ensure the fulfilment of the legitimate expectations of investors who have committed themselves to such projects, and the continued operation of those installations.
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40
Moreover, it must be recalled that the Court has already held that, in accordance with the principle of sincere cooperation, a Member State may not adopt provisions making repayment of a tax held to be contrary to EU law by a judgment of the Court, or whose incompatibility with EU law is apparent from such a judgment, subject to conditions relating specifically to that tax which are less favourable than those which would otherwise be applied to that repayment of the tax (see, to that effect, judgments of 10 September 2002 in Prisco and CASER, C‑216/99, C‑222/99, EU:C:2002:472, paragraph 77 and the case-law cited, and 2 October 2003 in Weber’s Wine World and Others, C‑147/01, EU:C:2003:533, paragraph 87).
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53. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (see, in that regard, Dorsch Consult , paragraph 36; Köllensperger and Atzwanger , paragraphs 20 to 23; and De Coster , paragraphs 18 to 21; see also, to that effect, Eur Court HR De Cubber v. Belgium , judgment of 26 October 1984, Series A No 86, § 24).
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21 Finally, it appears from the explanations provided by the Belgian Government at the request of the Court that appointments of members of the Collège juridictionnel are for an unlimited period of time and cannot be revoked.
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39 PROVISION WAS MADE FOR THIS REDUCTION BECAUSE THE REQUIREMENT OF THE WHOLE OF THE 'SOVRAPREZZO' TOGETHER WITH THE IMPACT OF TRANSPORT COSTS WOULD HAVE MADE IT IMPOSSIBLE TO IMPORT COMMUNITY SUGAR INTO ITALY, SINCE FOREIGN SUPPLIERS COULD NOT HAVE OFFERED THEIR PRODUCTS AT A PRICE HIGHER THAN THE MAXIMUM PRICE FIXED BY THE ITALIAN AUTHORITIES, WHICH ACCORDING TO CIP WOULD HAVE BEEN 'CONTRARY TO THE OBJECTIVES WHICH WERE PURSUED '.
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40. The Court has consistently interpreted the second paragraph of Article 288 EC as meaning that the non-contractual liability of the Community and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see, among others, Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 19; and Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑6513, paragraph 106).
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19 It is settled case law that the Community' s non-contractual liability under the second paragraph of Article 215 of the EEC Treaty is dependent on the coincidence of a series of conditions as regards the unlawfulness of the acts alleged against the Community institutions, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (see, in particular, the judgment in Cases C-258/90 and C-259/90 Pesquerias de Bermeo and Naviera Laida v Commission [1992] ECR I-2901, paragraph 42).
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19THIS IS THE CONCLUSION WHICH MUST BE DRAWN EVEN THOUGH THE COMPETENT AUTHORITY IS EMPOWERED TO GRANT EXEMPTIONS FROM THE FIXED MINIMUM PRICE AND THOUGH THIS POWER IS FREELY APPLIED TO IMPORTED PRODUCTS , SINCE THE REQUIREMENT THAT IMPORTERS AND TRADERS MUST COMPLY WITH THE ADMINISTRATIVE FORMALITIES INHERENT IN SUCH A SYSTEM MAY IN ITSELF CONSTITUTE A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION .
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78. Next, the amount of compensation, fixed at EUR 250, 400 and 600 depending on the distance of the flights concerned may still be reduced by 50% in accordance with Article 7(2)(c) of Regulation No 261/2004, where the delay is – in the case of a flight not falling under subparagraphs (a) or (b) of Article 7(2) – less than four hours ( Sturgeon and Others , paragraph 63).
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63. It is important to point out that the compensation payable to a passenger under Article 7(1) of Regulation No 261/2004 may be reduced by 50% if the conditions laid down in Article 7(2) of the regulation are met. Even though the latter provision refers only to the case of re-routing of passengers, the Court finds that the reduction in the compensation provided for is dependent solely on the delay to which passengers are subject, so that nothing precludes the application mutatis mutandis of that provision to compensation paid to passengers whose flights are delayed. It follows that the compensation payable to a passenger whose flight is delayed, who reaches his final destination three hours or more after the arrival time originally scheduled, may be reduced by 50%, in accordance with Article 7(2)(c) of Regulation No 261/2004, where the delay is – in the case of a flight not falling under points (a) or (b) of Article 7(2) – less than four hours.
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21. Under Community law, every national of a Member State is assured of freedom both to enter another Member State in order to pursue an employed or self-employed activity and to reside there after having pursued such an activity. Access to leisure activities available in that Member State is a corollary to that freedom of movement.
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38. For the rest, the Court has already held that merely making a contribution to the maintenance of public security, which any individual may be called upon to do, does not constitute exercise of official authority (see Case C‑114/97 Commission v Spain , paragraph 37).
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37 However, the exercise of that activity does not mean that security undertakings and security staff are vested with powers of constraint. Merely making a contribution to the maintenance of public security, which any individual may be called upon to do, does not constitute exercise of official authority.
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30. Second, Article 18 EC, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC in relation to freedom of movement for workers (see Case C‑3/08 Leyman [2009] ECR I‑9085, paragraph 20 and case-law cited).
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59. On the other hand, it is not possible for a recipient of aid which has been declared incompatible, who could have challenged the Commission’s decision, to call in question the decision before the national courts in an action brought against the measures taken by the national authorities for implementing that decision. To accept that in such circumstances the person concerned could challenge the implementation of the Community decision in proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time-limit for bringing an action laid down in the fifth paragraph of Article 230 EC has expired (see, to that effect, TWD Textilwerke Deggendorf , paragraphs 17 and 18, and Case C‑239/99 Nachi Europe [2001] ECR I‑1197, paragraph 37).
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37 However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from pleading the illegality of that regulation before the national court (see, in regard to a Commission decision, TWD Textilwerke Deggendorf, paragraphs 24 and 25). Such a conclusion applies to regulations imposing anti-dumping duties by virtue of their dual nature, noted by the Court in the case-law cited in paragraph 21 of the present judgment, as acts of a legislative nature and acts liable to be of direct and individual concern to certain traders.
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90. Il s’ensuit qu’une demande visant à obtenir réparation du préjudice causé par le non-respect, par le Tribunal, d’un délai de jugement raisonnable ne peut être soumise directement à la Cour dans le cadre d’un pourvoi, mais doit être introduite devant le Tribunal lui-même.
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60. The Court has also stated on several occasions that, even though, according to their wording, the provisions concerning freedom of establishment are mainly aimed at ensuring that foreign nationals are treated in the host Member State in the same way as nationals of that State, they also prohibit the State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation which comes within the definition contained in Article 48 EC (see Case C‑251/98 Baars [2000] ECR I‑2787, paragraph 28; Case C‑9/02 de Lasteyrie du Saillant [2004] ECR I‑2409, paragraph 42, and Heinrich Bauer Verlag , paragraph 26).
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26. It must also be pointed out that even though, according to their wording, the provisions concerning freedom of establishment are mainly aimed at ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation which comes within the definition contained in Article 58 of the Treaty (see AMID , paragraph 21).
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48. For example, they may refuse to carry out a revision where the facts to be verified require physical verification and, following the release of the goods, the latter can no longer be presented to them.
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45. First, in the cases which gave rise to the judgments referred to above, namely Case C‑56/98 Modelo (‘ Modelo I ’) [1999] ECR I‑6427, paragraphs 19 and 23; Case C‑19/99 Modelo (‘ Modelo II ’) [2000] ECR I‑7213, paragraphs 19 and 23; and Längst and Organon Portuguesa (see, respectively, paragraphs 41 to 43 and paragraphs 11 and 17), the fees in question were also initially made by notaries who were civil servants, and then transferred in part to the State.
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23 Consequently, the Directive must be interpreted as meaning that charges constitute taxes for the purposes of the Directive where they are collected for drawing up notarially attested acts recording a transaction covered by the Directive, under a system where notaries are employed by the State and the charges in question are paid in part to that State for the financing of its official business.
The prohibition laid down in Article 10 of the Directive
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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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15 Furthermore, the Court has already held that the allocation of an income equal to the social minimum formed an integral part of the social policy of the Member States and that those States enjoyed a reasonable margin of discretion as regards both the nature of the protective measures in the social sphere and the detailed arrangements for their implementation (judgment in Commission v Belgium, cited above, paragraphs 22 and 23).
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22 The aim of the Belgian legislation is to take into consideration the existence of different needs. On the one hand, it recognizes the greater burdens resulting from unemployment for households with only one income and, on the other hand, it takes into account the financial aid which the spouse' s income represents for the unemployed person. Moreover, it seeks to encourage the persons concerned to adapt themselves to their new financial situation by avoiding too sudden a drop in their income during the first year, whilst enabling the unemployed person with dependants to bear the expenses of a household beyond a period of 18 months. Those principles and objectives form part of a social policy which in the current state of Community law is a matter for the Member States which enjoy a reasonable margin of discretion as regards both the nature of the protective measures and the detailed arrangements for their implementation (judgment in Hofmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 27).
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16. Par ailleurs, un État membre ne saurait exciper de dispositions, pratiques ou situations de son ordre juridique interne pour justifier le non-respect des obligations et délais prescrits par une directive (voir, notamment, arrêt du 10 avril 2003, Commission/France, C-114/02, Rec. p. I-3783, point 11).
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48 It should be noted at the outset that, in the context of proceedings brought under Article 177 of the Treaty, the Court does not have jurisdiction to give a ruling on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see, inter alia, Joined Cases C-37/96 and C-38/96 Sodiprem and Others [1998] ECR I-2039, paragraph 22).
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22 When addressing that question, it must be borne in mind that, within the framework of proceedings brought under Article 177 of the Treaty, the Court does not have jurisdiction to give a ruling on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see, inter alia, Case C-134/95 USSL No 47 di Biella v INAIL [1997] ECR I-195, paragraph 17).
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41. Accordingly, the existence of direct discrimination, within the meaning of the Directive, presupposes, first, that the situations being weighed up are comparable.
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21 It must be pointed out in this regard that, as was stated in paragraph 25 of the judgment in Dekker, the Directive does not provide for any ground of exemption from liability on which the person guilty of discrimination could rely and does not make reparation of such damage conditional on the existence of fault, no matter how easy if would be to adduce proof of fault.
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25 It follows that when the sanction chosen by the Member State is contained within the rules governing an employer' s civil liability, any breach of the prohibition of discrimination must, in itself, be sufficient to make the employer liable, without there being any possibility of invoking the grounds of exemption provided by national law .
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21. To that effect, it appears from the third and fifth recitals in the preamble to Directive 92/81 that the latter is intended to render more precise a number of common definitions for mineral oil products which are to be subject to the general excise system and to lay down certain exemptions relating to those products which are obligatory at Community level (see C-389/02 Deutsche See-Bestattungs-Genossenschaft [2004] ECR I-3537, paragraphs 17 and 18). It is also apparent both from those recitals and from the title of Directive 92/81 that those common definitions and the exemptions laid down are intended to promote the establishment and proper functioning of the internal market and to set up a harmonised system in respect of the structures of excise duties on mineral oils at Community level.
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15 It is settled law that obstacles to intra-Community trade resulting from disparities between provisions of national law must be accepted in so far as such provisions may be justified as being necessary in order to satisfy overriding requirements relating, inter alia, to consumer protection and fair trading. However, in order to be permissible, such provisions must be proportionate to the objective pursued and that objective must be incapable of being achieved by measures which are less restrictive of intra-Community trade (see the judgments in Case 120/78 Rewe -Zentral [1979] ECR 649; Case C-238/89 Pall [1990] ECR I-4827, paragraph 12; and Case C-126/91 Yves Rocher [1993] ECR I-2361, paragraph 12).
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12THE GERMAN GOVERNMENT ALSO CLAIMS THAT THE FIXING OF A LOWER LIMIT FOR THE ALCOHOL CONTENT OF CERTAIN LIQUEURS IS DESIGNED TO PROTECT THE CONSUMER AGAINST UNFAIR PRACTICES ON THE PART OF PRODUCERS AND DISTRIBUTORS OF ALCOHOLIC BEVERAGES .
THIS ARGUMENT IS BASED ON THE CONSIDERATION THAT THE LOWERING OF THE ALCOHOL CONTENT SECURES A COMPETITIVE ADVANTAGE IN RELATION TO BEVERAGES WITH A HIGHER ALCOHOL CONTENT , SINCE ALCOHOL CONSTITUTES BY FAR THE MOST EXPENSIVE CONSTITUENT OF BEVERAGES BY REASON OF THE HIGH RATE OF TAX TO WHICH IT IS SUBJECT .
FURTHERMORE , ACCORDING TO THE GERMAN GOVERNMENT , TO ALLOW ALCOHOLIC PRODUCTS INTO FREE CIRCULATION WHEREVER , AS REGARDS THEIR ALCOHOL CONTENT , THEY COMPLY WITH THE RULES LAID DOWN IN THE COUNTRY OF PRODUCTION WOULD HAVE THE EFFECT OF IMPOSING AS A COMMON STANDARD WITHIN THE COMMUNITY THE LOWEST ALCOHOL CONTENT PERMITTED IN ANY OF THE MEMBER STATES , AND EVEN OF RENDERING ANY REQUIREMENTS IN THIS FIELD INOPERATIVE SINCE A LOWER LIMIT OF THIS NATURE IS FOREIGN TO THE RULES OF SEVERAL MEMBER STATES .
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49. It must, in particular, determine in which State is situated the place from which the employee carries out his transport tasks, receives instructions concerning his tasks and organises his work, and the place where his work tools are situated. It must also determine the places where the transport is principally carried out, where the goods are unloaded and the place to which the employee returns after completion of his tasks.
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60. In that regard, it must be recalled that, as a general rule, it is not for the Court of Justice to rule on the question whether the labelling of certain products is likely to mislead the purchaser or consumer or to determine whether a sales description is potentially misleading. That task is for the national court (see, inter alia, Case C‑210/96 Gut Springenheide and Tusky [1998] ECR I‑4657, paragraph 30, and Case C‑366/98 Geffroy [2000] ECR I‑6579, paragraphs 18 and 19). When giving a preliminary ruling on a reference, however, the Court may, in appropriate cases, give clarifications to guide the national court in its decision ( Geffroy , paragraph 20).
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20 When giving a preliminary ruling on a reference, however, the Court may, in appropriate cases, give clarifications to guide the national court in its decision (see Case C-424/97 Haim v Kassenzahnärztliche Vereinigung Nordrhein [2000] ECR I-5123, paragraph 58).
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15 UNDER THE TERMS OF ARTICLE 36 OF THE TREATY THE PROVISIONS RELATING TO THE FREE MOVEMENT OF GOODS WITHIN THE COMMUNITY ARE NOT TO PRECLUDE PROHIBITIONS ON IMPORTS WHICH ARE JUSTIFIED INTER ALIA ' ' ON GROUNDS OF PUBLIC MORALITY ' ' . IN PRINCIPLE , IT IS FOR EACH MEMBER STATE TO DETERMINE IN ACCORDANCE WITH ITS OWN SCALE OF VALUES AND IN THE FORM SELECTED BY IT THE REQUIREMENTS OF PUBLIC MORALITY IN ITS TERRITORY . IN ANY EVENT , IT CANNOT BE DISPUTED THAT THE STATUTORY PROVISIONS APPLIED BY THE UNITED KINGDOM IN REGARD TO THE IMPORTATION OF ARTICLES HAVING AN INDECENT OR OBSCENE CHARACTER COME WITHIN THE POWERS RESERVED TO THE MEMBER STATES BY THE FIRST SENTENCE OF ARTICLE 36 .
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70
With regard to whether the first ground of appeal is well founded, it must be borne in mind that the Court of Justice has held on many occasions that, although the EU rules in force until the end of 1999 do not lay down a time limit for the adoption of a decision on financial corrections by the Commission, since 2000 that has, however, been subject to compliance with a time limit laid down in EU law (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 75 to 82; of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 75 to 82; of 22 October 2014, Spain v Commission, C‑429/13 P, EU:C:2014:2310, paragraph 29; of 4 December 2014, Spain v Commission, C‑513/13 P, not published, EU:C:2014:2412, paragraph 36; of 24 June 2015, Germany v Commission, C‑549/12 P and C‑54/13 P, EU:C:2015:412, paragraph 81, and of 24 June 2015, Spain v Commission, C‑263/13 P, EU:C:2015:415, paragraph 50).
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77. Given that Article H(2) of Annex II to Regulation No 1164/94, as amended, in force since 1 January 2000, varies depending on the language versions of that regulation, it is necessary to determine the exact meaning by reference to the context of that provision, that is to say, in the present case, similar regulations relating the management of the European Union’s Funds.
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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 Furthermore, in order to achieve the Directive's objectives, there must be cooperation between the authorities of the exporting State and those of the importing Member State, as the latter have to bring to the attention of the former any difficulties encountered regarding the phytosanitary certificates issued by them concerning, for example, contaminated products or certificates that are incorrect or have been interfered with (see Anastasiou I, paragraph 63).
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61 It should be noted that the common system of protection against the introduction of harmful organisms in products imported from non-member countries, laid down in Directive 77/93, is based essentially on a system of checks carried out by experts lawfully empowered for that purpose by the Government of the exporting State and guaranteed by the issue of the appropriate phytosanitary certificate. The conditions governing acceptance of those certificates as a uniform means of proof must consequently be absolutely identical in all the Member States.
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23 In that regard, it has also been consistently held that any activity consisting in offering goods and services on a given market is an economic activity (Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7; Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 36; and Pavlov, cited above, paragraph 75).
Arguments of the parties
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29. First, the Court notes that the manner in which images are transmitted is not a determining factor in that assessment, as evidenced by the use in Article 1(a) of Directive 89/552 of the terms ‘by wire or over the air, including that by satellite, in unencoded or encoded form’. The Court has thus held that transmission by cable comes within the scope of that directive, even though cable distribution was not very widespread at the time when Directive 89/552 was adopted (see Case C‑11/95 Commission v Belgium [1996] ECR I-4115, paragraphs 15 to 25).
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16 The Belgian Government advances three arguments in that regard. First, as defined in Article 1(a) of Directive 89/552, the term "television broadcasting" clearly refers only to the initial broadcasting of television programmes.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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56. As regards, last, the enquiry raised by the referring court in its third question, it must be stated that, according to settled case‑law of the Court, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the State has failed to transpose the directive into national law within the time-limit or has transposed it incorrectly (see Case C‑549/11 Orfey Balgaria [2012] ECR, paragraph 51 and case‑law cited). It is clear that the provisions examined above, in particular Articles 1, 3 and 4 of the Eighth Directive and Articles 171 and 195 of the VAT Directive, satisfy those conditions.
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51. According to settled case-law of the Court, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the State has failed to transpose the directive into national law within the time-limit or has transposed it incorrectly (see Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 103, and Joined Cases C-55/11, C-57/11 and C-58/11 Vodafone España [2012] ECR, paragraph 37).
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64. L’effectivité du contrôle juridictionnel garanti par l’article 47 de la Charte exige notamment que le juge de l’Union s’assure que la décision, qui revêt une portée individuelle pour la personne ou l’entité concernée, repose sur une base factuelle suffisamment solide. Cela implique une vérification des faits allégués dans l’exposé des motifs qui sous-tend ladite décision, de sorte que le contrôle juridictionnel ne soit pas limité à l’appréciation de la vraisemblance abstraite des motifs invoqués, mais porte sur le point de savoir si ces motifs, ou, à tout le moins, l’un d’eux considéré comme suffisant en soi pour soutenir cette même décision, sont étayés (voir arrêt Kadi II, point 119).
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41
The implementation of that system of control is a matter for both the Commission and the national courts, their respective roles being complementary but separate (judgment of 13 February 2014, Mediaset, C‑69/13, EU:C:2014:71, paragraph 19).
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19. In that regard, it must be borne in mind that the implementation of that system of control is a matter for both the Commission and the national courts, their respective roles being complementary but separate (see Case C-284/12 Deutsche Lufthansa [2013] ECR, paragraph 27 and the case-law cited).
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50. It is clear from the above considerations that the ground of appeal alleging failure to observe the rules on the imputability to the parent company of the practices of its subsidiary in that the General Court applied an irrebuttable version of the presumption based on ownership by the parent company of the total share capital of its subsidiary is unfounded, since it is based on a misreading of the judgment under appeal.
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36 In this respect, the Court first of all noted, at paragraph 14 of its judgment in Spotti, that it had held in Case 33/88 Allué and Another [1989] ECR 1591, that Article 48(2) of the Treaty precludes the application of a provision of national law imposing a limit on the duration of the employment relationship between universities and foreign-language assistants where there is, in principle, no such limit with regard to other workers.
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14 The Court has held in Case 33/88 Allué and Another v Università degli Studi di Venezia [1989] ECR 1591 that Article 48(2) of the EEC Treaty precludes the application of a provision of national law imposing a limit on the duration of the employment relationship between universities and foreign-language assistants where there is, in principle, no such limit with regard to other workers.
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La mise en œuvre de la présomption de l’exercice effectif d’une influence déterminante n’est ainsi pas subordonnée à la production d’indices supplémentaires relatifs à l’exercice effectif d’une influence de la société mère (arrêt du 29 septembre 2011, Elf Aquitaine/Commission, C‑521/09 P, EU:C:2011:620, points 80 et 96).
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15 Articles 12 and 13 of the Treaty prohibit customs duties on imports and exports in trade between the Member States and charges having equivalent effect. With regard to customs duties and charges having equivalent effect on imports, the Court has stated (judgments in Case 77/72 Capolongo [1973] ECR 611, Compagnie Commerciale de l' Ouest and Sanders, cited above) that in principle that prohibition covers all charges levied at the time of or by reason of importation, which are imposed specifically on an imported product but not on a similar domestic product. It has also held that pecuniary charges intended to finance the activities of an agency governed by public law can constitute charges having equivalent effect.
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25 Article 95 prohibits Member States from directly or indirectly imposing on the products of other Member States any internal taxation in excess of that imposed directly or indirectly on similar domestic products or of such a nature as to afford protection to other domestic products. The applicability of the provision in question therefore depends on whether or not the internal taxation measure is discriminatory or protective.
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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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22. The Court has already ruled that a decision like that adopted by the Gemeinsamer Bundesausschuss, even if it covers only the acceptance for coverage of a series of active ingredients, constitutes a bundle of individual decisions on the inclusion of certain medicinal products in one of the social security schemes, so as to bring it within the provisions of Article 6 of Directive 89/105 (see, to that effect, Case C-229/00 Commission v Finland [2003] ECR I-5727, paragraph 34).
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34. It follows that the Council of Ministers' decision constitutes a bundle of individual decisions on the inclusion of certain medicinal products in one of the social security schemes, so as to bring it within the provisions of Article 6 of the directive.
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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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84. That is so except for situations originating and becoming definitive under the previous legislation which create acquired rights (see, to this effect, Case 68/69 Brock [1970] ECR 171, paragraph 7; Case 143/73 SOPAD [1973] ECR 1433, paragraph 8; Case 270/84 Licata v ESC [1986] ECR 2305, paragraph 31 and Centeno Mediavilla and Others v Commission , paragraph 62). A right is considered to be acquired when the event giving rise to it occurred before the legislative amendment (see Centeno Mediavilla and Others v Commission , paragraph 63).
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7 ALTHOUGH THESE PROVISIONS ORIGINALLY GOVERNED THE SITUATION EXISTING ON 1 JANUARY 1959, THE DATE WHEN THE REGULATION WAS BROUGHT INTO FORCE IN ITS ORIGINAL FORM, THEY ARE NEVERTHELESS GENERAL IN SCOPE SO THAT THEY ALSO APPLY TO THE AMENDED VERSION OF THAT REGULATION AND IN PARTICULAR TO ANNEX G, AS AMENDED BY REGULATION NO 130/63, WITH THE RESERVATION THAT THE DATE WHEN THEIR RULES TAKE EFFECT IS BROUGHT FORWARD TO 1 JANUARY 1964, THE DATE WHEN THAT AMENDMENT ENTERED INTO FORCE . THIS PROVISION IS IN FACT ONLY AN APPLICATION OF THE PRINCIPLE THAT AMENDING LEGISLATION APPLIES, EXCEPT WHERE OTHERWISE PROVIDED, TO THE EFFECTS IN THE FUTURE OF SITUATIONS WHICH HAVE ARISEN UNDER THE LAW AS IT STOOD BEFORE AMENDMENT .
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67. Admittedly, as InnoLux has argued, in the judgment in Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraph 59) the Court held, in a context internal to the EEA, that in order to determine the value of sales to be taken into account for the purposes of calculating the amount of the fines imposed for breach of Article 101 TFEU, a distinction should not be drawn depending on whether those sales are to independent third parties or to entities belonging to the same undertaking.
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33 In relation to the arguments relied upon by the Italian Government to justify that restriction, it is appropriate to point out that it is also settled case-law that the freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where it is established (see, in particular, the above-cited judgments in Parodi, paragraph 21; Arblade and Others, paragraph 34; and Commission v Italy, paragraph 23).
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21 It must be remembered, however, that, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established. In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives (see, in particular, Case 279/80 Webb [1981] ECR 3305, paragraphs 17 and 20; Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 27; and Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221, paragraph 15).
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43. Third, it follows from the term "principally" used in point R1 of Annex II B to the Directive that the waste must be used principally as a fuel or other means of generating energy, which means that the greater part of the waste must be consumed during the operation and the greater part of the energy generated must be recovered and used.
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32 It follows that the owner of a trade mark protected by the legislation of a Member State cannot rely on that legislation in order to oppose the importation or marketing of a product which was put on the market in another Member State by him or with his consent (see, in particular, Case 16/74 Centrafarm v Winthrop [1974] ECR 1183, paragraphs 7 to 11; HAG II, paragraph 12; and IHT Internationale Heiztechnik, paragraphs 33 and 34).
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9 AN OBSTACLE TO THE FREE MOVEMENT OF GOODS MAY ARISE OUT OF THE EXISTENCE, WITHIN A NATIONAL LEGISLATION CONCERNING INDUSTRIAL AND COMMERCIAL PROPERTY, OF PROVISIONS LAYING DOWN THAT A TRADE MARK OWNER'S RIGHT IS NOT EXHAUSTED WHEN THE PRODUCT PROTECTED BY THE TRADE MARK IS MARKETED IN ANOTHER MEMBER STATE, WITH THE RESULT THAT THE TRADE MARK OWNER CAN PREVENT IMPORTATION OF THE PRODUCT INTO HIS OWN MEMBER STATE WHEN IT HAS BEEN MARKETED IN ANOTHER MEMBER STATE .
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27. In such a case, the possession of a diploma certifying that the candidate has passed a language examination may constitute a criterion for assessing the required linguistic knowledge (see, to that effect, Angonese , EU:C:2000:296, paragraph 44).
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58. Since Article 80(2) EC does not lay down any explicit limitations as to the nature of the specific common rules which the Council may adopt on that basis in accordance with the procedural provisions laid down in Article 71 EC, the Community legislature has broad legislative powers under Article 80(2) EC and is competent – by virtue of that provision and in keeping with the other provisions of the EC Treaty relating to the common transport policy, in particular Article 71(1) EC – to lay down, inter alia, ‘measures to improve transport safety’ and ‘any other appropriate provisions’ in the field of maritime transport (see, to that effect, in respect of road transport, Joined Cases C‑184/02 and C‑223/02 Spain and Finland v Parliament and Council [2004] ECR I‑7789, paragraph 28).
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28. It is apparent from Article 71(1) EC that, for the purpose of implementing a common transport policy, and taking into account the distinctive features of transport, the Council, acting in accordance with the co-decision procedure referred to in Article 251 EC, is competent to lay down inter alia ‘measures to improve transport safety’ (indent (c)) and ‘any other appropriate provisions’ (indent (d)).
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44. In this respect, it must be observed that the downloading of a copy of a computer program and the conclusion of a user licence agreement for that copy form an indivisible whole. Downloading a copy of a computer program is pointless if the copy cannot be used by its possessor. Those two operations must therefore be examined as a whole for the purposes of their legal classification (see, by analogy, Joined Cases C-145/08 and C-149/08 Club Hotel Loutraki and Others [2010] ECR I-4165, paragraphs 48 and 49 and the case-law cited).
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59. En outre, le FEOGA ne finançant que les interventions effectuées conformément aux dispositions de l’Union dans le cadre de l’organisation commune des marchés agricoles (arrêts Espagne/Commission, C‑349/97, EU:C:2003:251, point 45, et Grèce/Commission, C‑300/02, EU:C:2005:103, point 32), le renversement de la charge de la preuve garantit que tout financement du FEOGA soit subordonné à la preuve effective d’une telle conformité.
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45. It should be made clear first of all that the EAGGF finances only intervention undertaken in accordance with the Community rules within the framework of the common organisation of agricultural markets (see, in particular, Case C-278/98 Netherlands v Commission [2001] ECR I-1501, paragraph 38, and Case C-263/98 Belgium v Commission [2001] ECR I-6063, paragraph 35).
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10 Following the judgment in Stoeckel, cited above, the Italian Republic denounced the Convention in February 1992, with effect from February 1993.
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26. According to the case-law of the Court, removal from customs supervision must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code ( D. Wandel , paragraph 47; Liberexim , paragraph 55; and Case C-337/01 Hamann International [2004] ECR I-1791, paragraph 31).
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31. Regarding more specifically the concept of removal from customs supervision in Article 203(1) of the Customs Code, it should be borne in mind that, according to the Court ' s case-law, that concept must be understood as encompassing any act or omission the result of which is to prevent the competent customs authority, if only for a short time, from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code (Case C-66/99 D. Wandel [2001] ECR I-873, paragraph 47, and Case C-371/99 Liberexim [2002] ECR I-6227, paragraph 55).
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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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47. Protection for the proprietor of a trade mark is guaranteed by Article 5 of the directive, which determines the rights conferred by a registered trade mark and provides, in paragraph (1), that that mark is to confer on the proprietor exclusive rights therein and that the proprietor is to be entitled, within certain limits, to prevent all third parties from using his trade mark in the course of trade (see, to that effect, Case C-337/95 Parfums Christian Dior [1997] ECR I-6013, paragraph 34).
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34 On the one hand, Article 5 of the Directive, which determines the rights conferred by a trade mark, provides, in paragraph (1), that the proprietor is to be entitled to prevent all third parties from using his trade mark in the course of trade and, in paragraph (3)(d), that he may prohibit all third parties from using the trade mark in advertising.
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15 In that regard, it must be pointed out that, by a communication published in the Official Journal of the European Communities, the Commission informed potential recipients of State aid of the risk attaching to any aid granted them illegally, in that they might have to refund the aid ( Official Journal 1983 C 318, p . 3 ).
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21. First of all, it should be noted that, as a general rule, the Court will refrain from considering the principle of tax neutrality with a view to ascertaining whether EU law precludes national rules which lay down time-limits within which a VAT refund must be claimed, failing which the action is time-barred (see, to that effect, Case C‑85/97 SFI [1998] ECR I‑7447, paragraphs 22 to 36; Case‑62/00 Marks & Spencer [2002] ECR I‑6325, paragraphs 22 to 47; and Case C‑472/08 Alstom Power Hydro [2010] ECR I‑623, paragraphs 14 to 22).
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24 In that regard, it should be remembered, first, that the Member States' obligation under a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty (now Article 10 EC) to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, inter alia, Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 41). It follows that in applying domestic law the national court called upon to interpret that law is required to do so, as far as possible, in the light of the wording and purpose of the directive, in order to achieve the purpose of the directive and thereby comply with the third paragraph of Article 189 of the EC Treaty (now the third paragraph of Article 249 EC) (see, in particular, Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20).
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75. Il y a lieu de rappeler que la Cour a déjà jugé qu’une mesure qui exclut la possibilité pour une société mère résidente de déduire de son bénéfice imposable des pertes subies dans un autre État membre par une filiale établie sur le territoire de celui-ci, alors qu’elle accorde une telle possibilité pour des pertes subies par une filiale résidente, ou qui exclut, dans le cadre d’une fusion, la possibilité pour la société mère établie dans un État membre de déduire de ses revenus imposables les pertes de la filiale absorbée, établie dans un autre État membre, peut être justifiée par la nécessité de préserver la répartition du pouvoir d’imposition entre les États membres et de faire obstacle aux risques de double emploi des pertes ainsi que d’évasion fiscale (voir, en ce sens, arrêts Marks & Spencer, précité, points 44 à 51, et du 21 février 2013, A, C‑123/11, points 40 à 46), mais va au-delà de ce qui est nécessaire pour atteindre l’essentiel des objectifs poursuivis dans une situation où la filiale non-résidente a épuisé les possibilités de prise en compte des pertes qui existent dans son État membre de résidence (voir, en ce sens, arrêts précités Marks & Spencer, point 55, et A, point 49).
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43. In that connection, the Court has held that, in the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 42; Case C‑365/97 Commission v Italy [1999] ECR I-7773, paragraph 32; and Case C‑363/00 Commission v Italy , cited above, paragraph 21).
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21. In that connection, the Court has held that, in the context of proceedings under Article 226 EC, the existence of an infringement must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 42, and Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 32).
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63. Contrary to what the Kingdom of Sweden claims, the fact that the reduction in mobility must be of a significant duration and must have occurred before the age of 65 is not such as to change the purpose of the Swedish disability allowance, which consists in meeting the needs stemming from the disability and covering the risk caused by the sickness which is at the origin of that disability.
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98. The Court has, similarly, held that it is for the national courts to ensure, having regard in particular to the actual rules for applying the restrictive legislation concerned, that the latter genuinely meets the concern to reduce opportunities for gambling and to limit activities in that area in a consistent and systematic manner (see to that effect, in particular, Zenatti , paragraphs 36 and 37, and Placanica and Others , paragraphs 52 and 53).
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53. With regard to the first type of objective, it is clear from the case-law that although restrictions on the number of operators are in principle capable of being justified, those restrictions must in any event reflect a concern to bring about a genuine diminution of gambling opportunities and to limit activities in that sector in a consistent and systematic manner (see, to that effect, Zenatti , paragraphs 35 and 36, and Gambelli and Others , paragraphs 62 and 67).
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90. Where it is not possible to dissociate such a restriction from the main operation or activity without jeopardising its existence and aims, it is necessary to examine the compatibility of that restriction with Article 81 EC in conjunction with the compatibility of the main operation or activity to which it is ancillary, even though, taken in isolation, such a restriction may appear on the face of it to be covered by the prohibition rule in Article 81(1) EC.
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32. The Court has also held that that provision of the EC Treaty permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for public health, or even the survival of the population ( Kohll , paragraph 51; Smits and Peerbooms , paragraph 74; and Müller-Fauré and van Riet , paragraph 67).
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51 Article 56 of the Treaty permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of a treatment facility or medical service on national territory is essential for the public health and even the survival of the population (see, with respect to public security within the meaning of Article 36 of the Treaty, Case 72/83 Campus Oil v Minister for Industry and Energy [1984] ECR 2727, paragraphs 33 to 36).
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114. It is therefore important that mechanisms be established which ensure the creation of a genuine market for certificates in which supply can match demand, reaching some kind of balance, so that it is actually possible for the relevant suppliers and users to obtain certificates under fair terms.
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81. It should be recalled here that the Court has held that where, at the time when it committed the infringement, the Member State in question had only considerably reduced, or even no, discretion, the mere infringement of Community law may be enough to establish the existence of a sufficiently serious breach (see Norbrook Laboratories , paragraph 109 and the case-law cited).
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109 As regards the second condition, the Court has held, first, that a breach is sufficiently serious where a Member State, in the exercise of its legislative powers, has manifestly and gravely disregarded the limits on its powers (see Brasserie du Pêcheur and Factortame, paragraph 55; British Telecommunications, paragraph 42; and Dillenkofer and Others, paragraph 25, all cited above) and, second, that where, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (see Hedley Lomas, paragraph 28, and Dillenkofer and Others, paragraph 25, both cited above).
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30. The purpose of Article 11(A)(1)(c) is to define the taxable amount of private use – or, more generally, of use for purposes other than those of the business – of goods forming part of the assets of a taxable person’s business, as Article 6(2)(a) of the Sixth Directive treats such use as a supply of services for consideration which is therefore subject to VAT.
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31 Subject to the national court's determination of this issue, it must be noted that, as the Court has already pointed out, if the requirement of an authorization constitutes a restriction on the freedom to provide services, the requirement of a permanent establishment is the very negation of that freedom. It has the result of depriving Article 59 of the Treaty of all effectiveness, a provision whose very purpose is to abolish restrictions on the freedom to provide services of persons who are not established in the State in which the service is to be provided. If such a requirement is to be accepted, it must be shown that it constitutes a condition which is indispensable for attaining the objective pursued (see Commission v Germany, cited above, paragraph 52, and Case C-101/94 Commission v Italy [1996] ECR I-2691, paragraph 31).
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52 IF THE REQUIREMENT OF AN AUTHORIZATION CONSTITUTES A RESTRICTION ON THE FREEDOM TO PROVIDE SERVICES , THE REQUIREMENT OF A PERMANENT ESTABLISHMENT IS THE VERY NEGATION OF THAT FREEDOM . IT HAS THE RESULT OF DEPRIVING ARTICLE 59 OF THE TREATY OF ALL EFFECTIVENESS , A PROVISION WHOSE VERY PURPOSE IS TO ABOLISH RESTRICTIONS ON THE FREEDOM TO PROVIDE SERVICES OF PERSONS WHO ARE NOT ESTABLISHED IN THE STATE IN WHICH THE SERVICE IS TO BE PROVIDED ( SEE IN PARTICULAR THE JUDGMENT OF 3 DECEMBER 1974 , CITED ABOVE , AND THE JUDGMENTS OF 26 NOVEMBER 1985 IN CASE 39/75 COENEN V SOCIAAL-ECONOMISCHE RAAD ( 1975 ) ECR 1547 , AND 10 FEBRUARY 1982 IN CASE 76/81 TRANSPOROUTE V MINISTER FOR PUBLIC WORKS ( 1982 ) ECR 417 ). IF SUCH A REQUIREMENT IS TO BE ACCEPTED , IT MUST BE SHOWN THAT IT CONSTITUTES A CONDITION WHICH IS INDISPENSABLE FOR ATTAINING THE OBJECTIVE PURSUED .
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23 AS REGARDS THE FIRST PART OF THE APPLICANT ' S ARGUMENT , IT MUST BE STATED THAT THE AGREEMENT , REGARD BEING HAD TO ITS CONTENT , ITS ORIGIN AND THE CIRCUMSTANCES IN WHICH IT WAS IMPLEMENTED , CLEARLY EXPRESSES THE INTENTION OF TREATING PARALLEL IMPORTS LESS FAVOURABLY THAN OFFICIAL IMPORTS WITH A VIEW TO HINDERING THE FORMER .
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70
With regard to whether the first ground of appeal is well founded, it must be borne in mind that the Court of Justice has held on many occasions that, although the EU rules in force until the end of 1999 do not lay down a time limit for the adoption of a decision on financial corrections by the Commission, since 2000 that has, however, been subject to compliance with a time limit laid down in EU law (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 75 to 82; of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 75 to 82; of 22 October 2014, Spain v Commission, C‑429/13 P, EU:C:2014:2310, paragraph 29; of 4 December 2014, Spain v Commission, C‑513/13 P, not published, EU:C:2014:2412, paragraph 36; of 24 June 2015, Germany v Commission, C‑549/12 P and C‑54/13 P, EU:C:2015:412, paragraph 81, and of 24 June 2015, Spain v Commission, C‑263/13 P, EU:C:2015:415, paragraph 50).
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80. Such an interpretation is all the more justified since all the earlier regulations, enacted both by the Council and by the Commission, confirm that the Commission is obliged to comply with a certain time-limit when it adopts a decision on financial corrections.
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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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31. According to settled case‑law, for a trade mark to possess distinctive character for the purposes of that provision, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings ( Henkel v OHIM , paragraph 34; Case C‑304/06 P Eurohypo v OHIM [2008] ECR I‑3297, paragraph 66; and Case C‑398/08 P Audi v OHIM [2010] ECR I‑0000, paragraph 33).
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34. For a trade mark to possess distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings (see, in relation to Article 3(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), a provision which is identical to Article 7(1)(b), Joined Cases C-53/01 to C‑55/01 Linde and Others [2003] ECR I-3161, paragraph 40).
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Ce règlement n° 267/2012, qui constitue un acte juridiquement contraignant, au sens de l’article 291, paragraphe 2, TFUE,
énonce les critères généraux devant présider à l’inscription de personnes ou d’entités sur l’une des listes, contenues aux
annexes VIII et IX dudit règlement, des personnes ou des entités qui doivent faire l’objet de mesures restrictives, en tenant
compte des modifications apportées par la décision 2012/35 aux critères généraux d’inscription figurant dans la décision 2010/413,
lesquelles ont, en particulier, consisté à ajouter le critère relatif à la fourniture d’un appui au gouvernement iranien (arrêt
du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 38).
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20. Like the tax charged on inheritances, which consist in the transfer to one or more persons of assets left by a deceased person and likewise fall under that heading of Annex I to the directive (see, inter alia, Case C‑256/06 Jäger [2008] ECR I‑123, paragraph 25; Eckelkamp and Others , paragraph 39; Arens-Sikken , paragraph 30; Block , paragraph 20; and Case C‑35/08 Busley and Cibrian Fernandez [2009] ECR I‑0000, paragraph 18), the tax treatment of gifts, whether they are gifts of money, immovable property or movable property, therefore comes under the Treaty provisions on the movement of capital, except where their constituent elements are confined within a single Member State (see, to that effect, Persche , paragraph 27).
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39. In that regard, the Court – noting, in particular, that inheritances consisting in the transfer to one or more persons of assets left by a deceased person or, in other words, a transfer to the heirs of ownership of the various items of property, rights, and so on which make up those assets fall under heading XI of Annex I to Directive 88/361, entitled ‘Personal capital movements’ – has held that an inheritance is a movement of capital for the purposes of Article 56 EC, except in cases where its constituent elements are confined within a single Member State (see Case C‑364/01 Barbier [2003] ECR I‑15013, paragraph 58; Hilten‑van der Heijden , paragraph 42; and Jäger , paragraph 25).
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67
According to recital 12 of that decision where deriving a product benchmark has not been feasible, but greenhouse gases eligible for the free allocation of emission allowances occur, those allowances should be allocated on the basis of generic fallback approaches. To that end, a hierarchy of three fallback approaches has been developed in order to maximise greenhouse gas emission reductions and energy savings for at least parts of the production processes concerned.
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62
Against that background, as is clear from paragraph 34 of the present judgment, the very existence of the right to paid annual leave cannot be subject to any preconditions whatsoever, that right being conferred directly on the worker by Directive 2003/88. Thus, as regards the case in the main proceedings, it is irrelevant whether or not, over the years, Mr King made requests for paid annual leave (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraphs 27 and 28).
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27. Moreover, since Article 7(2) of Directive 2003/88 does not impose any condition for entitlement to an allowance in lieu other than that relating to the fact that the employment relationship has ended, it must be held that receipt of such an allowance should not be make subject to the existence of a prior application for that purpose.
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10 SECONDLY , THIS PROVISION FORMS PART OF THE SOCIAL OBJECTIVES OF THE COMMUNITY , WHICH IS NOT MERELY AN ECONOMIC UNION , BUT IS AT THE SAME TIME INTENDED , BY COMMON ACTION , TO ENSURE SOCIAL PROGRESS AND SEEK THE CONSTANT IMPROVEMENT OF THE LIVING AND WORKING CONDITIONS OF THEIR PEOPLES , AS IS EMPHASIZED BY THE PREAMBLE TO THE TREATY .
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78. In this respect, the Court has had occasion to rule that the exception in the first paragraph of Article 45 EC does not extend to certain activities that are auxiliary or preparatory to the exercise of official authority (see, to that effect, Thijssen , paragraph 22; Commission v Spain , paragraph 38; Servizi Ausiliari Dottori Commercialisti , paragraph 47; Commission v Germany , paragraph 38, and Commission v Portugal , paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, Reyners , paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, Thijssen, paragraphs 21 and 22; Case C‑393/05 Commission v Austria , paragraphs 36 and 42; Commission v Germany , paragraphs 38 and 44; and Commission v Portugal , paragraphs 36 and 41), powers of constraint (see, to that effect, inter alia, Commission v Spain , paragraph 37) or powers of coercion (see, to that effect, Case C‑47/02 Anker and Others [2003] ECR I‑10447, paragraph 61, and Commission v Portugal , paragraph 44).
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36. Thus, according to settled case-law, derogation under those articles must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Servizi Ausiliari Dottori Commercialisti , cited above, paragraph 46 and the case-law cited), 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 (Case C‑42/92 Thijssen [1993] ECR I‑4047, paragraph 22).
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124. Il ressort de ces éléments, premièrement, que le Tribunal n’a pas commis d’erreur de droit en interprétant le point 23 des lignes directrices pour le calcul des amendes comme signifiant que la Commission a annoncé dans celles-ci que, pour les restrictions de concurrence les plus graves, telles que les accords horizontaux de fixation de prix et de répartition du marché, elle retiendra généralement une proportion allant de 15 % à 30 % de la valeur des ventes. Le Tribunal ayant à bon droit considéré que l’infraction commise par Gosselin relevait de cette catégorie d’infractions les plus graves, Gosselin ne saurait utilement prétendre que son comportement individuel n’aurait pas été pris en compte.
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8. It must, however, be recalled that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, inter alia, Case C‑111/00 Commission v Austria [2001] ECR I‑7555, paragraph 13, and Case C‑135/05 Commission v Italy [2007] ECR I‑3475, paragraph 36).
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36. First of all, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes even if they constitute a correct application of the Community law rule which is the subject of the action for failure to fulfil obligations (see, to that effect, Case C‑111/00 Commission v Austria [2001] ECR I‑7555, paragraphs 13 and 14; Case C‑103/00 Commission v Greece [2002] ECR I‑1147, paragraph 23; the judgment of 28 April 2005 in Case C‑157/04 Commission v Spain , not published in the ECR, paragraph 19; and the judgment of 7 July 2005 in Case C‑214/04 Commission v Italy , not published in the ECR, paragraph 14).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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51
In the second place, the criteria for distinguishing simple or ordinary products from those serving a medical purpose include the method of manufacture of the product concerned and the specificity of its purpose (see, to that effect, judgment of 7 November 2002, Lohmann and Medi Bayreuth, C‑260/00 to C‑263/00, EU:C:2002:637, paragraph 39).
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39 The criteria for distinguishing simple or ordinary products from those serving a medical purpose therefore include the method of manufacture of the product concerned, the nature of the materials of which it is made, its adjustability to the handicaps which it is intended to correct or other special characteristics, in particular the specificity of its purpose.
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80. In that regard, it is sufficient to note that, in accordance with settled case‑law, in so far as the national measures at issue entail restrictions on freedom of establishment, such restrictions are a direct consequence of the obstacles to the free movement of capital considered above, to which they are inextricably linked. Consequently, since an infringement of Article 56(1) EC has been established, there is no need for a separate examination of the measures at issue in the light of the Treaty rules concerning freedom of establishment (see, inter alia, Commission v Netherlands , paragraph 43).
Costs
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18
Second, as regards the condition that an aid measure taken by a public undertaking must be attributable to the State, it is clear from settled case-law that that may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken (judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 55).
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55 For those reasons, it must be accepted that the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken. In that respect, the Court has already taken into consideration the fact that the body in question could not take the contested decision without taking account of the requirements of the public authorities (see, in particular, Van der Kooy, paragraph 37) or the fact that, apart from factors of an organic nature which linked the public undertakings to the State, those undertakings, through the intermediary of which aid had been granted, had to take account of directives issued by a Comitato Interministeriale per la Programmazione Economica (CIPE) (Case C-303/88 Italy v Commission, cited above, paragraphs 11 and 12; Case C-305/89 Italy v Commission, cited above, paragraphs 13 and 14).
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32FURTHERMORE , OPPORTUNITIES FOR PROMOTION DO EXIST .
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127. The importance of the European Union rules infringed in a case such as this is reflected, in particular, in the fact that repayment of aid declared unlawful and incompatible with the common market eliminates the distortion of competition caused by the competitive advantage afforded by the aid and that, by repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market (see, to that effect, Case C-350/93 Commission v Italy [1995] ECR I-699, paragraph 22, and Germany v Commission , paragraph 75).
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22 That objective is attained once the aid in question, increased where appropriate by default interest, has been repaid by the recipient, in this case SNAM SpA, to ENI, the public body responsible for managing State holdings. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored.
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69. The notion of ‘funds, other financial assets and economic resources’ as used in Regulation No 2580/2001 also takes on, by virtue of the related definition given in Article 1(1) of that regulation, a wide meaning which covers assets of every kind, however acquired. It is not important, in that regard, whether own assets or assets which have been collected or obtained from third persons are concerned.
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21 Secondly, it must be established that the contested decision is not simply a preparatory step, in which case an action against the decision in which the procedure culminates would ensure sufficient protection against any unlawfulness (see the judgment in Case 53/85 Akzo Chemie v Commission [1986] ECR 1965).
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20 IT IS CERTAINLY TRUE THAT THE DOCUMENTS WERE TRANSMITTED WITH A VIEW TO FACILITATING THE EXAMINATION OF THE CASE . HOWEVER , THE MEASURE ADVERSELY AFFECTING THE APPLICANT IS , AS IS CLEAR FROM THE FOREGOING PARAGRAPHS , THE DECISION IN WHICH THE COMMISSION CONSIDERED THAT THE DOCUMENTS IN QUESTION DID NOT QUALIFY FOR THE CONFIDENTIAL TREATMENT GUARANTEED BY COMMUNITY LAW AND COULD THEREFORE BE COMMUNICATED . THAT MEASURE IS DEFINITIVE IN NATURE AND IS INDEPENDENT OF ANY DECISION ON THE QUESTION WHETHER ARTICLE 86 OF THE TREATY HAS BEEN INFRINGED . THE OPPORTUNITY WHICH THE APPLICANT HAS TO BRING AN ACTION AGAINST A FINAL DECISION ESTABLISHING THAT THE COMPETITION RULES HAVE BEEN INFRINGED IS NOT OF SUCH A NATURE AS TO PROVIDE IT WITH AN ADEQUATE DEGREE OF PROTECTION OF ITS RIGHTS IN THE MATTER . ON THE ONE HAND , IT IS POSSIBLE THAT THE ADMINISTRATIVE PROCEDURE WILL NOT RESULT IN A DECISION FINDING THAT AN INFRINGEMENT HAS BEEN COMMITTED . ON THE OTHER HAND , IF AN ACTION IS BROUGHT AGAINST THAT DECISION , IT WILL NOT IN ANY EVENT PROVIDE THE APPLICANT WITH THE MEANS OF PREVENTING THE IRREVERSIBLE CONSEQUENCES WHICH WOULD RESULT FROM IMPROPER DISCLOSURE OF CERTAIN OF ITS DOCUMENTS .
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50
However, the measures adopted by the Member States must not go beyond what is necessary to achieve the objectives pursued. Therefore, they cannot be used in such a way that they would have the effect of systematically undermining the right to deduct VAT and, consequently, the neutrality of VAT (judgments of 21 March 2000, Gabalfrisa and Others, C‑110/98 to C‑147/98, EU:C:2000:145, paragraph 52, and of 21 June 2012, Mahagében and Dávid, C‑80/11 and C‑142/11, EU:C:2012:373, paragraph 57).
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23 Article 11A(1)(a) of the Sixth Directive deals, inter alia, with situations where three parties are involved: the authority which grants the subsidy, the body which benefits from it and the purchaser of the goods or services delivered or supplied by the subsidised body (see, to that effect, judgment of 22 November 2001 Case C-184/00 Office des produits wallons [2001] ECR I-9115, paragraph 10).
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10 It should first be noted that, as has been pointed out both by the Commission in the observations which it has submitted to the Court and by the Advocate General in point 40 of his Opinion, in circumstances such as those in the main proceedings it is immaterial whether or not there is a distinct service by a taxpayer such as OPW to the body paying the subsidy. Article 11A of the Sixth Directive deals with situations where three parties are involved: the authority which grants the subsidy, the body which benefits from it and the purchaser of the goods or services delivered or supplied by the subsidised body. Thus, transactions covered by Article 11A of the Sixth Directive are not those carried out for the benefit of the authority granting the subsidy.
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32 The answer to the second and third questions must therefore be that the limitation of the effects in time of the Barber judgment does not apply to the right to join an occupational pension scheme and that, in this context, there is no scope for any analogous limitation.
The fourth question
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48 It should be recalled that in its judgment in Case 294/81 Control Data v Commission [1983] ECR 911, paragraph 17, and its judgment in Van Gend & Loos and Bosman, cited above, paragraph 9, the Court has already rejected this plea, put forward in the same legal context. In those judgments the Court held that the procedure for adopting the disputed decisions, which comprised several stages, some of which took place at national level (submission of the application by the undertaking concerned, preliminary examination of the application by the customs authorities) and some at Community level (submission of the application to the Commission, examination of it by the Committee on Duty-Free Arrangements, consultation of a group of experts, decision by the Commission, notification to the Member State concerned), afforded the persons concerned all the necessary legal safeguards.
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17 THAT PART OF THE FIRST SUBMISSION CANNOT BE UPHELD . AS THE APPLICANT ITSELF ADMITS , THE COMMISSION FOLLOWED THE PROCEDURE LAID DOWN BY THE RELEVANT COMMUNITY RULES . IT IS ALSO NOT IN DISPUTE THAT THAT PROCEDURE ENABLED THE APPLICANT TO STATE IN FULL ITS ARGUMENT CONCERNING THE SCIENTIFIC NATURE OF THE COMPUTERS IN QUESTION IN THE FILE LODGED WITH THE BELGIAN AUTHORITIES AND THAT THE FILE WAS MADE AVAILABLE BOTH TO THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND TO THE COMMISSION .
( B ) INFRINGEMENT OF THE COMMUNITY RULES DEFINING THE SCIENTIFIC NATURE OF AN INSTRUMENT OR APPARATUS
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62 It follows that the details of a project cannot be considered to be adopted by a Law, for the purposes of Article 1(5) of the Directive, if the Law does not include the elements necessary to assess the environmental impact of the project but, on the contrary, requires a study to be carried out for that purpose, which must be drawn up subsequently, and if the adoption of other measures are needed in order for the developer to be entitled to proceed with the project.
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48. The Court has previously held that, as regards the ability of the authorities of the Member State in whose territory services are supplied to check that the rules intended to ensure that the rights conferred by national law on workers in its territory are followed, there are, clearly, objective differences between businesses established in the Member State where the services are supplied and those established in other Member States posting workers to the first Member State to supply services there (see, to that effect, Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte and Others [2001] ECR I-7831, paragraphs 63, 64 and 73). The fact that self-employed service providers established in Belgium are not subject to strictly equivalent requirements, in particular as regards the information to be provided, to those following from the declaration requirement at issue for self-employed service providers established in another Member State may thus be attributed to objective differences between those two categories of self-employed service providers.
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64 The difference in treatment may be explained by those objective differences, and does not therefore constitute discrimination contrary to Articles 59 and 60.
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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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60. Article 9 of Directive 98/5, although it does not preclude appeal proceedings being brought before a body which is not a court or tribunal, does not provide that a legal remedy may be open to the person concerned only after all other remedies have been exhausted. In any event, where an appeal before a non-judicial body is provided for by national law, Article 9 requires actual access within a reasonable period (see, by way of analogy, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 180 to 205, 223 and 234) to a court or tribunal as defined by Community law, which is competent to give a ruling on both fact and law.
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205 Accordingly, this complaint must be rejected.
(iii) The complaint of infringement by the Court of Justice of the principle that action is to be taken within a reasonable time on account of the length of the judicial proceedings culminating in the contested judgment
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46. It follows from the very wording of that provision, just as it does from the objectives of Directive 75/442, that waste waters which must be regarded as waste fall outside the legal regime under the directive only where, and to the extent that, they are governed by ‘other legislation’ within the meaning of that directive, that is to say by Community or national legislation which contains precise provisions organising the management of waste and ensures a level of protection which is at least equivalent to that resulting from Directive 75/442 and, more particularly, from Articles 4, 8 and 15 thereof (see, to that effect, Thames Water Utilities , paragraph 34).
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67
As the General Court noted in paragraph 56 of the judgment under appeal, its power to alter decisions does not have the effect of conferring on it the power to substitute its own assessment for that of a Board of Appeal of EUIPO, or of carrying out an assessment on which that Board of Appeal has not yet adopted a position (judgment of 5 July 2011 in Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72).
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72. It follows that the power of the General Court to alter decisions does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take.
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34. Accordingly, the main objective pursued in recovering unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage which such aid affords (Case C‑277/00 Germany v Commission [2004] ECR I‑3925, paragraph 76, and Case C-520/07 P Commission v MTU Friedrichshafen [2009] ECR I‑8555, paragraph 57). By repaying the aid, the beneficiary forfeits the advantage which it had over its competitors on the market, and the situation prior to payment of the aid is restored (Case C‑350/93 Commission v Italy [1995] ECR I‑699, paragraph 22).
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40. Consequently, the Member States are, in principle, free to set the objectives of their policy on betting and gaming and, where appropriate, to define in detail the level of protection sought (see, to that effect, Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 59).
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59. The Member States are therefore free to set the objectives of their policy on betting and gambling and, where appropriate, to define in detail the level of protection sought. However, the restrictive measures that they impose must satisfy the conditions laid down in the case-law of the Court as regards their proportionality ( Placanica and Others , paragraph 48).
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19 The text of Article 7(1) of the Directive does not give a direct answer to that question. Nevertheless, the rights conferred by the trade mark are exhausted only in respect of the individual items of the product which have been put on the market with the proprietor's consent in the territory there defined. The proprietor may continue to prohibit the use of the mark in pursuance of the right conferred on him by the Directive in regard to individual items of that product which have been put on the market in that territory without his consent.
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