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20. Accordingly, those terms must be interpreted in the light of the context in which they are used and of the aims and the scheme of the VAT Directive, having particular regard to the underlying purpose of the exemption in question (see, to that effect, Temco Europe , paragraph 18; Case C-428/02 Fonden Marselisborg Lystbådehavn [2005] ECR I-1527, paragraph 28; and Canterbury Hockey Club and Canterbury Ladies Hockey Club , paragraph 17).
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28. In the absence of a definition of ‘letting of immovable property’ in Article 13B(b) of the Sixth Directive, that provision must therefore be interpreted in the light of the context in which it is used and the scheme of the Directive, having particular regard to the underlying purpose of the exemption which it establishes (see, to that effect, Temco Europe , paragraph 18).
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10. Par ailleurs, c’est à la Commission seule d’apprécier l’opportunité d’introduire et de maintenir le recours en manquement (voir en ce sens, notamment, arrêt du 22 juin 1993, Commission/Danemark, C‑243/89, Rec. p. I‑3353, point 30).
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70. Any trader on the part of whom an institution has promoted reasonable expectations may rely on the principle of the protection of legitimate expectations. However, if a prudent and circumspect trader could have foreseen that the adoption of a Community measure is likely to affect his interests, he cannot plead that principle if the measure is adopted (Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products v Commission [1987] ECR 1155, paragraph 44, and Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809, paragraph 25). Furthermore, while the principle of protection of legitimate expectations is one of the fundamental principles of the Community, traders are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained, particularly in an area such as that of the common organisation of the markets, the objective of which involves constant adjustment to reflect changes in economic circumstances (see, in particular, Case C-104/97 P Atlanta v European Community [1999] ECR I-6983, paragraph 52).
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25 The Court has consistently held that any trader in regard to whom an institution has given rise to justified hopes may rely on the principle of the protection of legitimate expectations. On the other hand, if a prudent and discriminating trader could have foreseen the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted (Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products v Commission [1987] ECR 1155, paragraph 44). In view of the foregoing considerations, the plaintiffs in the main proceedings had sufficient information to enable them to anticipate, particularly in view of the continuing surpluses on the market, the subsequent reductions, the gradual decrease in compensation and the Commission's proposal for a regulation of 11 November 1991 to adopt the measures which appear in Regulations Nos 816/92 and 1560/93.
Right to property
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36. It must be borne in mind that the obligation on all operators of public telecommunications networks to negotiate when requested by other undertakings so authorised, as is apparent from Article 4(1) of the Access directive, concerns interconnection which, in accordance with the definition provided in Article 2(b) of that directive, ‘is a specific type of access implemented between public network operators’. Contrary to Article 26 of the Law on telecommunications, this obligation therefore does not concern other forms of access to networks, such as those defined in Article 2(a) of the directive and those provided for in the Law on telecommunications.
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61. However, there can be no requirement that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, where the subject-matter of the proceedings has not been extended or altered but simply limited (Case C-191/95 Commission v Germany , paragraph 56; Case C-365/97 Commission v Italy , paragraph 25; and Case C-177/04 Commission v France [2006] ECR I-0000, paragraph 37).
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56 However, that requirement cannot be carried so far as to mean that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered but simply limited (see, to that effect, Case C-279/94 Commission v Italy, cited above, paragraph 25).
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43
S’agissant, d’autre part, des champs d’application respectifs des règlements Rome I et Rome II, les notions d’«obligation contractuelle» et d’«obligation non contractuelle» y figurant doivent être interprétées de façon autonome, en se référant principalement au système et aux objectifs de ces règlements (voir, par analogie, arrêt ÖFAB, C‑147/12, EU:C:2013:490, point 27). Il convient également de tenir compte, ainsi que cela ressort du considérant 7 de chacun des deux règlements, de l’objectif de cohérence dans l’application réciproque de ces règlements, mais également du règlement Bruxelles I, qui, notamment, opère une distinction, à son article 5, entre les matières contractuelle et délictuelle ou quasi délictuelle.
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26
The deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, in particular, judgments of 29 October 2009, SKF, C‑29/08, EU:C:2009:665, paragraph 56, and of 18 July 2013, AES-3C Maritza East 1, C‑124/12, EU:C:2013:488, paragraph 26).
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56. The deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, inter alia, Case C‑137/02 Faxworld [2004] ECR I‑5547, paragraph 37; Investrand , paragraph 22; Securenta , paragraph 25; and SALIX Grundstücks-Vermietungsgesellschaft , paragraph 71).
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23. To that end, the applicant must show that
─ the medicinal product for which the marketing authorisation is sought is essentially similar to another medicinal product, namely the reference medicinal product;
─ the reference medicinal product has been authorised within the Community, in accordance with the Community provisions in force, for at least six or ten years;
─ the reference medicinal product is "marketed in the Member State for which the application is made" .
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16. Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (Case C-209/01 Schilling and Fleck-Schilling [2003] ECR I-13389, paragraph 25, and Commission v Denmark , paragraph 35).
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35. Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned ( Bosman , paragraph 96).
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9. 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 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 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9).
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10 Although Article 59, guaranteeing freedom to provide services within the Community, has been directly and unconditionally applicable since the expiry of the transitional period provided for in Article 8 of the Treaty, under Article 61(1 ) of the Treaty freedom to provide services in the field of transport is to be governed by the provisions of the title relating to transport ( see the judgments of 30 April 1986 in Joined Cases 209 to 213/84 Ministère public v Asjes (( 1986 )) ECR 1457 and of 13 July 1989 in Case 4/88 Lambregts Transportbedrijf v Belgian State (( 1989 )) ECR 2583, paragraphs 8 and 9 ).
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8 It should first be pointed out that Article 59, guaranteeing the freedom to provide services within the Community, became directly and unconditionally applicable on the expiry of the transitional period indicated in Article 8 of the Treaty, as the Court pointed out in its judgment of 17 December 1981 Case 279/80 Webb (( 1981 )) ECR 3305 . In that judgment, the Court also pointed out that that freedom involved the abolition of all discrimination against the person providing the service by reason of the fact that he is established in a Member State other than that in which the service is to be provided .
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49. Il y a lieu de rappeler que, selon une jurisprudence constante, la motivation exigée à l’article 253 CE doit être adaptée à la nature de l’acte en cause et doit faire apparaître de façon claire et non équivoque le raisonnement de l’institution, auteur de l’acte, de manière à permettre aux intéressés de connaître les justifications de la mesure prise et à la juridiction compétente d’exercer son contrôle. Il n’est pas exigé que la motivation spécifie tous les éléments de fait et de droit pertinents, dans la mesure où la question de savoir si la motivation d’un acte satisfait aux exigences de l’article 253 CE doit être appréciée au regard non seulement de son libellé, mais aussi de son contexte ainsi que de l’ensemble des règles juridiques régissant la matière concernée (voir, notamment, arrêts du 12 décembre 2002, Belgique/Commission, C‑5/01, Rec. p. I‑11991, point 68, et du 15 juillet 2004, Espagne/Commission, C‑501/00, Rec. p. I‑6717, point 73 et jurisprudence citée).
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31. In particular, the possibility that a Member State may be relieved of some of its responsibilities does not mean that it is free to introduce a difference in treatment between, on the one hand, national bodies which are recognised as pursuing charitable purposes and, on the other, bodies established in another Member State which are recognised as pursuing charitable purposes, on the ground that legacies left to the latter cannot, even though the activities of those bodies reflect the same objectives as the legislation of the former Member State, have compensatory effects for budgetary purposes. It is settled law that the need to prevent the reduction of tax revenues is neither among the objectives stated in Article 65 TFEU nor an overriding reason in the public interest capable of justifying a restriction on a freedom instituted by the Treaty (see, to that effect, Persche , paragraph 46).
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46. However, it does not follow that a Member State can introduce a difference in treatment, in respect of the deduction for tax purposes of gifts, between national bodies recognised as being charitable and those established in another Member State on the grounds that gifts made for the benefit of the latter, even if their activities are among the purposes of the legislation of the former Member State, cannot lead to such budgetary compensation. It is settled case-law that the need to prevent the reduction of tax revenues is neither among the objectives stated in Article 58 EC nor an overriding reason in the public interest capable of justifying a restriction on a freedom instituted by the Treaty (see, to that effect, Case C‑319/02 Manninen [2004] ECR I-7477, paragraph 49, and Centro di Musicologia Walter Stauffer , paragraph 59; see, by analogy, as regards the freedom to supply services, Case C‑136/00 Danner [2002] ECR I-8147, paragraph 56, and Case C‑76/05 Schwarz and Gootjes-Schwarz [2007] ECR I‑6849, paragraph 77).
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225. In that regard, it should be noted that, as a number of the appellants have pointed out, the main innovation in the Guidelines consisted in taking as a starting point for the calculation a basic amount, determined on the basis of brackets laid down for that purpose by the Guidelines; those brackets reflect the various degrees of gravity of the infringements but, as such, bear no relation to the relevant turnover. The essential feature of that method is thus that fines are determined on a tariff basis, albeit one that is relative and flexible.
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44. Articles 87(3)(c) and 88 EC expressly state that the Commission ‘may’ consider aid covered by the first of those two provisions to be compatible with the common market. Accordingly, whilst the Commission must always determine whether State aid subject to review by it is compatible with the common market, even if that aid has not been notified to it (see Case C-301/87 France v Commission (the ‘ Boussac Saint Frères ’ case) [1990] ECR I-307, paragraphs 15 to 24), it is not bound to declare such aid compatible with the common market (see Case C-409/00 Spain v Commission , cited above, paragraph 94).
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23 It has to be recognized that if the Member State fails to suspend payment of the aid, the Commission is entitled, while carrying out the examination on the substance of the matter, to bring the matter directly before the Court by applying for a declaration that such payment amounts to an infringement of the Treaty . Such a referral is justified in respect of urgency because there has been a decision embodying an order, taken after the Member State in question has been given an opportunity to submit its comments and thus at the conclusion of a preliminary procedure in which it has been enabled to put its case, as in the case of the means of redress provided under the second subparagraph of Article 93(2 ) of the Treaty . This means of redress is in fact no more than a variant of the action for a declaration of failure to fulfil Treaty obligations, specifically adapted to the special problems which State aid poses for competition within the common market .
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35. That objective of the Unfair Commercial Practices Directive, which is to fully protect consumers against practices of that kind, relies on the assumption that, in relation to a trader, the consumer is in a weaker position, in that the consumer must be considered to be economically weaker and less experienced in legal matters than the other party to the contract (see, by analogy, Shearson Lehman Hutton , paragraph 18).
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6 THE APPLICANT CLAIMS THAT THE FINDING IN PARAGRAPHS 52 TO 54 OF THE JUDGMENT OF 5 MAY 1981 THAT REGULATIONS NOS 797/79 AND 1152/79 WERE DESIGNED SOLELY TO ADJUST THE APPLICATION OF THE PROTECTIVE MEASURES TO GOODS ALREADY IN TRANSIT TO THE COMMUNITY WITHIN THE MEANING OF ARTICLE 3(3 ) OF REGULATION NO 2707/72 IS BASED PARTLY ON A FACTUAL ERROR BECAUSE IT IS IN FACT WELL KNOWN THAT THE GOODS ALLOWED TO BE IMPORTED PURSUANT TO REGULATION NO 1152/79 WERE NOT IN TRANSIT TO THE COMMUNITY UNTIL AFTER 12 APRIL 1979 , BY WHICH DATE , ACCORDING TO REGULATION NO 797/79 , THE DESSERT APPLES OUGHT TO HAVE LEFT CHILE .
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54 SINCE THE SITUATION OF GOODS WHICH HAD NOT YET LEFT A CHILEAN PORT WITH RESPECT TO ARTICLE 3 ( 2 ) OF REGULATION NO 2707/72 IS NOT COMPARABLE TO THE SITUATION OF GOODS ' ' IN TRANSIT ' ' , WITHIN THE MEANING OF ARTICLE 3 ( 3 ), THE FACT THAT THE ARRANGEMENTS UNDER THE CONTESTED REGULATIONS NO 797/79 AND NO 1152/79 WERE NOT EXTENDED TO SUCH A SITUATION CANNOT THEREFORE BE REGARDED AS CONSTITUTING DISCRIMINATION CONTRARY TO THE TREATY .
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42. It must be recalled at the outset that the registration of a mark in a public register has the aim of making it accessible to the competent authorities and to the public, particularly to economic operators ( Heidelberger Bauchemie EU:C:2004:384, paragraph 28, and Chartered Institute of Patent Attorneys EU:C:2012:361, paragraph 46).
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15 Lastly, as the Court has consistently held, the application of national provisions to providers of services established in other Member States must be such as to guarantee the achievement of the intended aim and must not go beyond that which is necessary in order to achieve that objective. In other words, it must not be possible to obtain the same result by less restrictive rules (see, most recently, Case C-154/89 Commission v France, cited above, paragraphs 14 and 15; Case C-180/89 Commission v Italy, cited above, paragraphs 17 and 18; Case C-198/89 Commission v Greece, cited above, paragraphs 18 and 19).
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17 However, in view of the specific requirements in relation to certain services, the fact that a Member State makes the provision thereof subject to conditions as to the qualifications of the person providing them, pursuant to rules governing such activities within its jurisdiction, cannot be considered incompatible with Articles 59 and 60 of the Treaty. Nevertheless, as one of the fundamental principles of the Treaty the freedom to provide services may be restricted only by rules which are justified in the general interest and are applied 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 he is established. In addition, such requirements must be objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected (see inter alia the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, at paragraph 27).
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52. En ce qui concerne le droit national applicable dans l’affaire au principal, il apparaît cependant qu’il incombe généralement au demandeur, pour établir l’atteinte à un droit, de justifier que les circonstances de l’espèce rendent envisageable que la décision contestée aurait été différente sans le vice de procédure invoqué. Or, cette dévolution de la charge de la preuve au demandeur, pour la mise en œuvre du critère de causalité, est de nature à rendre excessivement difficile l’exercice des droits qui lui sont conférés par la directive 85/337, compte tenu notamment de la complexité des procédures en cause ou de la technicité des évaluations des incidences sur l’environnement.
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83. The Court has consistently ruled that a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators (Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 51, and GB-Inno-BM , cited above, paragraph 25).
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25 A system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. To entrust an undertaking which markets terminal equipment with the task of drawing up the specifications for such equipment, monitoring their application and granting type-approval in respect thereof is tantamount to conferring upon it the power to determine at will which terminal equipment may be connected to the public network, and thereby placing that undertaking at an obvious advantage over its competitors (judgment in Case C-202/88, paragraph 51).
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90. It must be observed at the outset that the Framework Agreement does not compel the Member States to adopt a measure requiring every first or single use of a fixed-term employment contract to be justified by such objective reasons. As the Court has already held, such fixed-term employment contracts are not within the scope of clause 5(1) of the Framework Agreement, which relates solely to prevention of the misuse of successive fixed-term employment contracts or relationships; the objective reasons referred to in clause 5(1)(a) thus relate only to the renewal of such contracts or relationships (see Mangold , paragraphs 41 to 43).
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73
It should be recalled that an administrative practice of a Member State can be made the object of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (judgment of 22 September 2016, Commission v Czech Republic, C‑525/14, EU:C:2016:714, paragraph 14). The Grand Duchy of Luxembourg has, however, not disputed the Commission’s argument that the COBMA note sets out the general practice of the Luxembourg tax authorities.
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14
Since the Court can examine of its own motion whether the conditions laid down in Article 258 TFEU for bringing an action for failure to fulfil obligations are satisfied (judgment of 14 January 2010, Commission v Czech Republic, C‑343/08, EU:C:2010:14, paragraph 25 and the case-law cited) and the action is directed not against a national law or regulation but against a practice of the Czech assay office, it should be recalled, as a preliminary point, that an administrative practice of a Member State can be made the object of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (judgments of 29 April 2004, Commission v Germany, C‑387/99, EU:C:2004:235, paragraph 42 and the case-law cited, and of 5 March 2009, Commission v Spain, C‑88/07, EU:C:2009:123, paragraph 54).
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44 The purpose of Articles 27, 28 and 28a is to identify, in the various situations they describe, first, the institution responsible for providing persons entitled to a pension with sickness and maternity benefits and, second, the institution responsible for bearing the cost.
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51. In so doing, the Federal Republic of Germany has failed to put forward any convincing argument which could be based on one of the grounds set out in Article 46 EC, since economic considerations and mere practical difficulties in the implementation of the German-Polish Agreement are not, in any event, sufficient to justify restrictions on a fundamental freedom (see, by analogy, inter alia, Case C‑18/95 Terhoeve [1999] ECR I‑345, paragraph 45) or, a fortiori , a derogation under Article 46 EC, which presupposes the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society.
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45 The same holds true for the second justification referred to. Considerations of an administrative nature cannot justify derogation by a Member State from the rules of Community law. That principle applies with even greater force where the derogation in question amounts to preventing or restricting the exercise of one of the fundamental freedoms of Community law (see, to that effect, Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 54).
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33
It follows that a restriction on the freedom to provide services, such as that at issue in the main proceedings, cannot be justified by the fact that non-resident financial institutions are subject to a tax rate which is lower than the rate for resident financial institutions.
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20 When the question is considered, it must be noted that, according to the third recital in its preamble, Decision No 1/80 is intended to improve, in the social field, the treatment accorded to workers and members of their families in relation to the arrangements introduced by Decision No 2/76, which was adopted on 20 December 1976 by the Association Council established by the Association Agreement between the European Economic Community and Turkey. The provisions of Chapter II, Section 1, of Decision No 1/80 thus constitute a further stage in securing freedom of movement for workers on the basis of Articles 48, 49 and 50 of the EC Treaty (see, in particular, Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, paragraphs 14 and 19, and Case C-171/95 Tetik v Land Berlin [1997] ECR I-329, paragraph 20).
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14 It should first be noted that Decision No 2/76 is presented, in Article 1 thereof, as constituting a first stage in securing freedom of movement for workers between the Community and Turkey which was to last for four years as from 1 December 1976. Section 1 of Chapter II, headed "Social Provisions", of Decision No 1/80, which includes Article 6, constitutes a further stage in securing freedom of movement for workers and has applied, pursuant to Article 16, since 1 December 1980. As from that date, Article 6 of Decision No 1/80 has replaced the corresponding, less favourable, provisions of Decision No 2/76. That being so, for the purposes of giving a helpful answer to the questions submitted to the Court, and having regard to the times at which the facts summarized above occurred, it is solely to Article 6 of Decision No 1/80 that reference should be made.
The first question
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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43 The Court has repeatedly held that, in order to determine whether employees perform the same work or work to which equal value can be attributed, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation (see Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraphs 32 and 33, and Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, cited above, paragraph 17).
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17 In order to determine whether the work being done by different persons is the same, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation (see, to that effect, Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraphs 32 and 33).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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47. Moreover, the conditions and restrictions in terms of deadlines which have to be met in order to obtain that work permit and the administrative burden involved in obtaining such a permit impede the making available of workers who are nationals of non-member countries to a user undertaking established in the Netherlands by a service-providing undertaking established in another Member State, and, consequently, the provision of services by that undertaking (see, to that effect, judgments in Commission v Luxembourg , EU:C:2004:655, paragraph 23; Commission v Germany , EU:C:2006:49, paragraph 35; and Commission v Austria , EU:C:2006:595, paragraphs 39 and 42).
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23. It is indisputable that the conditions to be satisfied under the Grand Ducal Regulation of 12 May 1972 by a service-providing undertaking intending to deploy in Luxembourg workers who are nationals of non-member countries are liable, by reason of the administrative and financial burdens that they represent, to impede the planned deployment and, consequently, the provision of services by that undertaking (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, paragraph 30).
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110 THE SUBMISSION MUST THEREFORE BE REJECTED .
( B ) THE ALLEGED ABSENCE OF INTENTION ON THE PART OF PIONEER
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47. In addition, according to settled case-law, medical services supplied for consideration fall within the scope of the provisions of the FEU Treaty on the freedom to provide services, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (see, in particular, Smits and Peerbooms , paragraph 53, and Commission v France , paragraph 30).
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30. According to settled case-law, medical services supplied for consideration fall within the scope of those provisions, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (see, in particular, Case C‑8/02 Leichtle [2004] ECR I‑2641, paragraph 28; Watts , paragraph 86; and Case C‑444/05 Stamatelaki [2007] ECR I‑3185, paragraph 19).
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14 Thus, once the persons concerned have produced one of the documents mentioned in Directive 73/148 in order to establish their status as nationals of a Member State, the other Member States are not entitled to challenge that status on the ground that the persons concerned might also have the nationality of a non-member country which, under the legislation of the host Member State, overrides that of the Member State.
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87
In that context, that obligation of transparency, which is a corollary of the principle of equality, is designed essentially to ensure that any interested operator may take the decision to tender for contracts on the basis of all relevant information and to ensure the elimination of any risk of favouritism or arbitrariness on the part of the licensing authority. It implies that all the conditions and detailed rules governing the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question (judgment in Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 73 and the case-law cited).
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73. In that context, the purpose underlying the principle of transparency, which is a corollary of the principle of equality, is essentially to ensure that any interested operator may take the decision to tender for contracts on the basis of all the relevant information and to preclude any risk of favouritism or arbitrariness on the part of the licensing authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner, to make it possible for all reasonably informed tenderers exercising ordinary care to understand their exact significance and interpret them in the same way, and to circumscribe the contracting authority’s discretion and enable it to ascertain effectively whether the tenders submitted satisfy the criteria applying to the relevant procedure (see, to that effect, Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 111, and Case C‑250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraphs 45 and 46).
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48 IN THAT RESPECT IT MUST BE OBSERVED THAT THE PRACTICE OF THE PARLIAMENT , DEVELOPED IN THE EXERCISE OF ITS INDEPENDENT POWERS , TO HOLD MEETINGS OF ITS COMMITTEES AND POLITICAL GROUPS IN BRUSSELS HAS NEVER BEEN CALLED IN QUESTION BY ANY MEMBER STATE .
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23. Tel est le cas dès lors que les dispositions du droit de l’Union en cause ont été rendues applicables de manière directe et inconditionnelle, par le droit national, à de telles situations (voir, en ce sens, arrêts précités Cicala, point 19, et Nolan, point 47).
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19. Thus, an interpretation, by the Court, of provisions of EU law in purely internal situations is warranted on the ground that they have been made applicable by national law directly and unconditionally (see, to that effect, Case C‑346/93 Kleinwort Benson [1995] ECR I‑615, paragraph 16, and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 25), in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, to that effect, Poseidon Chartering , paragraph 17, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 22).
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13 Those conditions are as follows:
° non-collection of the duties was a result of an error made by the competent authorities themselves;
° the person liable acted in good faith, that is to say he was not able to detect the error made by the competent authorities;
° the person liable complied with all the requirements of the rules in force regarding his customs declaration.
The error by the competent authorities
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34. Within the framework of the cooperation between the Court and national courts and tribunals established by Article 234 EC, it is solely for the national court to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. The Court can refuse a request submitted by a national court only where it is quite obvious that the ruling sought by that court on the interpretation of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is general or hypothetical (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraphs 59 to 61, Case C-369/95 Somalfruit and Camar [1997] ECR I-6619, paragraphs 40 and 41, and Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20).
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60 Nevertheless, the Court has taken the view that, in order to determine whether it has jurisdiction, it should examine the conditions in which the case was referred to it by the national court. The spirit of cooperation which must prevail in the preliminary-ruling procedure requires the national court, for its part, to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (see, inter alia, Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871, paragraph 25).
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46. It is appropriate to bear in mind that the only possible decisive criterion is whether the retirement pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, which is based on the wording of Article 141 EC itself. However, that criterion cannot be regarded as exclusive, since pensions paid under statutory social security schemes may reflect, wholly or in part, pay in respect of work. Such pensions do not constitute ‘pay’ for the purposes of Article 141 EC (see Schönheit and Becker , paragraphs 56 and 57 and the case‑law cited).
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57. As was pointed out by the General Court in paragraph 28 of the order under appeal, third parties may be individually concerned by a decision addressed to another person only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 36; Inuit Tapiriit Kanatami and Others v Parliament and Council , paragraph 72; and Telefónica v Commission , paragraph 46).
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46. En ce qui concerne la seconde de ces conditions, à savoir le fait d’être affecté individuellement par l’acte en cause, il ressort d’une jurisprudence constante que les sujets autres que les destinataires d’une décision ne peuvent prétendre être concernés individuellement que si cette décision les atteint en raison de certaines qualités qui leur sont particulières ou d’une situation de fait qui les caractérise par rapport à toute autre personne et, de ce fait, les individualise d’une manière analogue à celle du destinataire (arrêts du 15 juillet 1963, Plaumann/Commission, 25/62, Rec. p. 197, 223, Comitato «Venezia vuole vivere» e.a./Commission, précité, point 52, ainsi que Inuit Tapiriit Kanatami e.a./Parlement et Conseil, précité, point 72).
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57. It is clear that the term ‘unusually heavy rainfall’ is mentioned in footnote 1 of Annex I to Directive 91/271 by way of illustration only, since the term is preceded by the words ‘during situations such as’. Thus, failure to collect or treat waste water may also be allowed in other circumstances.
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12 Those conditions are intended to ensure the correct and straightforward application of the exemptions and refer to measures intended to prevent any possible evasion, avoidance or abuse (Becker, cited above, paragraphs 33 and 34).
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33 THE ' ' CONDITIONS ' ' REFERRED TO ARE INTENDED TO ENSURE THE CORRECT AND STRAIGHTFORWARD APPLICATION OF THE EXEMPTIONS . A MEMBER STATE MAY NOT RELY , AS AGAINST A TAXPAYER WHO IS ABLE TO SHOW THAT HIS TAX POSITION ACTUALLY FALLS WITHIN ONE OF THE CATEGORIES OF EXEMPTION LAID DOWN IN THE DIRECTIVE , UPON ITS FAILURE TO ADOPT THE VERY PROVISIONS WHICH ARE INTENDED TO FACILITATE THE APPLICATION OF THAT EXEMPTION .
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25
That conclusion cannot validly be called into question by the argument made by the Council based, first, on the fact that the Bulgarian language version of the Rules of Procedure of the General Court is the only one to contain the ambiguity pointed out by the applicant and, second, on the case-law of the Court according to which the need to apply and interpret EU law uniformly precludes the examination of a provision in one of the language versions in isolation, but requires, on the contrary, its interpretation in the light of all the other language versions in accordance with its author’s intention (see, to that effect, the judgments of 12 November 1969, Stauder, 29/69, EU:C:1969:57, paragraph 3; of 17 July 1997, Ferriere Nord v Commission, C‑219/95 P, EU:C:1997:375, paragraph 15, and of 15 October 2015, Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685, paragraph 42).
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19
The Court has already ruled that legislation of a Member State which makes the application of an inheritance tax advantage, such as a tax-free allowance, dependent on the place of residence of the deceased person or the heir, or on the location of the assets contained in the estate, constitutes a restriction on the free movement of capital prohibited by Article 63(1) TFEU when it has the result that inheritances involving non-residents or containing assets located in another Member State are subject to a higher tax liability than that imposed on inheritances involving only residents or containing only assets located in the Member State of taxation, and which, therefore, has the effect of reducing the value of the inheritance (see, to that effect, judgments of 17 January 2008 in Jäger, C‑256/06, EU:C:2008:20, paragraphs 30 to 35; of 17 October 2013 in Welte, C‑181/12, EU:C:2013:662, paragraphs 23 to 26; of 3 September 2014 in Commission v Spain, C‑127/12, not published, EU:C:2014:2130, paragraphs 57 to 60; and of 4 September 2014 in Commission v Germany, C‑211/13, not published, EU:C:2014:2148, paragraphs 40 to 43).
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32. In the present case, the national provisions in issue in the main proceedings, in so far as they result in an inheritance consisting of agricultural land and forestry situated in another Member State being subject, in Germany, to inheritance tax that is higher than that which would be payable if the assets inherited were situated exclusively within the territory of that Member State, have the effect of restricting the movement of capital by reducing the value of an inheritance consisting of such an asset situated outside Germany.
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285. The argument relating to the alleged unequal treatment of Unicem and AITEC was rejected by the Court of First Instance at paragraphs 1701 to 1703 of the judgment under appeal. Relying on Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 146, the Court of First Instance stated that the fact that AITEC was not charged with the infringement in question could not absolve Unicem from its liability. There was no breach of the rights of the defence, since Unicem was not prevented from obtaining access to documents which might have supported its defence during the course of the administrative procedure.
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39. It should be borne in mind that the second paragraph of Article 1 of Regulation No 338/97 provides that that regulation is to apply in compliance with the objectives, principles and provisions of CITES. Although the Community is not a party to that convention, the Court cannot disregard those elements, in so far as they have to be taken into account in order to interpret the provisions of that regulation (see Case C-510/99 Tridon [2001] ECR I-7777, paragraph 25).
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25 However, since Regulation No 3626/82 and Regulation No 338/97 both apply, as stated in the second paragraph of Article 1 in each case, in compliance with the objectives, principles and (in the case of Regulation No 338/97) provisions of CITES, the Court cannot disregard those elements, in so far as they have to be taken into account in order to interpret the provisions of the regulations.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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50 The question of membership is thus governed by the judgment in Bilka, cited above, in which it as held that Article 119 of the Treaty had been infringed by an undertaking which, without objective justification unrelated to any discrimination on grounds of sex, accorded different treatment to men and women by excluding a category of employees from a company pension scheme. It should be noted that Bilka does not limit the temporal effects of its interpretation of Article 119 of the Treaty.
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20 IL Y A LIEU , A CET EGARD , DE SOULIGNER QUE , COMME IL RESSORT DU DOSSIER , LE REGIME DE PENSIONS D ' ENTREPRISE EN CAUSE DANS LE LITIGE PRINCIPAL , MEME S ' IL A ETE ADOPTE EN CONFORMITE AVEC LES DISPOSITIONS PREVUES PAR LE LEGISLATEUR ALLEMAND QUANT AUX REGIMES DU MEME TYPE , TROUVE SA SOURCE DANS UN ACCORD , INTERVENU ENTRE BILKA ET LE CONSEIL D ' ENTREPRISE REPRESENTANT SES EMPLOYES , AYANT POUR EFFET DE COMPLETER LES PRESTATIONS SOCIALES DUES EN VERTU DE LA LEGISLATION NATIONALE D ' APPLICATION GENERALE PAR DES PRESTATIONS DONT LE FINANCEMENT EST SUPPORTE UNIQUEMENT PAR L ' EMPLOYEUR .
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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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68. Moreover, the Court’s finding in paragraphs 67 to 78 of its judgment in Nuova Agricast , to the effect that undertakings in the first category and those in the second category were not in a comparable situation in terms of the criterion of the need for the State aid, does not per se preclude the possibility of the Commission’s having an obligation to authorise transitional provisions for undertakings in the first category as well in order to comply with, inter alia, the principle of the protection of legitimate expectations.
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75. In addition, in so far as, by changing the information that would be reflected in the indicators, the reformulation was designed to improve the ranking of the amended application in order for it to be included in the list with a ranking that would enable it to be successful when the funds were allocated to the invitation to apply concerned in descending order, the result of extending the benefit of the transitional provision to the undertakings in the first category would be that the chances of those undertakings’ projects of obtaining the aid applied for would be better than those of undertakings competing for the first time, for which the necessity of the aid was not in doubt.
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36. According to the case-law, Article 36(2), read in the light of the principle of equal treatment of economic operators set out in Article 3(2) of Directive 92/50 and of the ensuing obligation of transparency, requires that potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the economically most advantageous offer, and their relative importance, when they prepare their tenders (see, to that effect, in relation to public contracts in the water, energy, transport and telecommunications industries, Case C‑87/94 Commission v Belgium [1996] ECR I‑2043, paragraph 88; in relation to public works contracts, Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 98; and, in relation to public service contracts, Case C‑331/04 ATI EAC and Others [2005] ECR I‑10109, paragraph 24).
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32. À titre liminaire, il convient de rappeler que, pour déterminer la portée d’une disposition du droit de l’Union, il y a lieu de tenir compte à la fois de ses termes, de son contexte et de ses finalités (arrêt du 29 octobre 2009, NCC Construction Danmark, C‑174/08, Rec. p. I‑10567, point 23 et jurisprudence citée).
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23. It should be borne in mind at the outset that, in determining the scope of a provision of Community law, its wording, context and objectives must all be taken into account (Case C‑162/91 Tenuta il Bosco [1992] ECR I‑5279, paragraph 11; Case C‑315/00 Maierhofer [2003] ECR I‑563, paragraph 27; and Case C‑280/04 Jyske Finans [2005] ECR I‑10683, paragraph 34).
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82 Accordingly, by contrast with the benefits provided by organisations charged with the management of compulsory social security schemes of the kind referred to in Poucet and Pistre, cited above, the amount of the benefits provided by the Fund depends on the financial results of the investments made by it, in respect of which it is subject, like an insurance company, to supervision by the Insurance Board.
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86. 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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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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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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77. As OHIM pointed out, it follows from the Court’s case-law that, as a general rule, a mere combination of elements, each of which is descriptive of characteristics of the goods or services in respect of which registration is sought, itself remains descriptive of those characteristics for the purposes of Article 7(1)(c) of Regulation 40/94 ( Koninklijke KPN Nederland , paragraph 98, and Campina Melkunie , paragraph 39).
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98. As a general rule, a mere combination of elements, each of which is descriptive of characteristics of the goods or services in respect of which registration is sought, itself remains descriptive of those characteristics for the purposes of Article 3(1)(c) of the Directive. Merely bringing those elements together without introducing any unusual variations, in particular as to syntax or meaning, cannot result in anything other than a mark consisting exclusively of signs or indications which may serve, in trade, to designate characteristics of the goods or services concerned.
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23. On the other hand, it is for the Court of Justice to provide the national court with all necessary information with a view to offering guidance in that determination, recasting, if need be, the question referred to it (see, inter alia, Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 46, and Case C‑243/09 Fuß [2010] ECR I‑0000, paragraph 39).
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34. A tariff established by a professional organisation such as the Osservatorio may none the less have the character of legislation, inter alia, where the members of that organisation are experts who are independent of the economic operators concerned and they are required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the public interest and the interests of undertakings in other sectors or users of the services in question (see, to that effect, judgments in Reiff , EU:C:1993:886, paragraphs 17 to 19 and 24; Delta Schiffahrts- und Speditionsgesellschaft , EU:C:1994:240, paragraphs 16 to 18 and 23; DIP and Others , C‑140/94 to C‑142/94, EU:C:1995:330, paragraphs 18 and 19; Commission v Italy , C‑35/96, EU:C:1998:303, paragraph 44; and Arduino , EU:C:2002:97, paragraph 37).
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17 The Tariff Boards provided for by the GueKG are made up of tariff experts from the relevant sectors of the road haulage industry who are not bound by orders or instructions from the undertakings or associations which proposed them to the Federal Minister of Transport for appointment. Those boards cannot therefore be regarded as meetings of representatives of undertakings in the industry concerned.
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49. Secondly, it should be noted that Article 37 of Directive 92/50 does not contain a definition of the concept of an ‘abnormally low tender’. It is thus for the Member States and, in particular, the contracting authorities to determine the method of calculating an anomaly threshold constituting an ‘abnormally low tender’ within the meaning of that article (see, to that effect, the judgment in Lombardini and Mantovani , C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 67).
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11. Second, the Court has also stated that that requirement cannot be extended, however, so as to mean that in every case the statement of the complaints set out in the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings as defined in the reasoned opinion has not been extended or altered (see Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 28, and Case C-484/04 Commission v United Kingdom [2006] ECR I-0000, paragraph 25).
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28. Although it is true that the subject-matter of the proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision and that, consequently, both the Commission’s reasoned opinion and the application must be based on the same complaints, that requirement cannot be stretched so far as to mean that in every case the statement of the subject-matter of the proceedings in the reasoned opinion must be exactly the same as the form of order sought in the originating application if the subject-matter of the proceedings has not been extended or altered but simply limited (see, in particular, Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraphs 24 and 25, Case C-52/00 Commission v France [2002] ECR I-3827, paragraph 44, and Case C-139/00 Commission v Spain [2002] ECR I-6407, paragraphs 18 and 19).
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36. It follows from the foregoing that, if a Member State has introduced an exception for private copying into its national law and if the final users who, on a private basis, reproduce a protected work reside on its territory, that Member State must ensure, in accordance with its territorial competence, the effective recovery of the fair compensation for the harm suffered by the authors on the territory of that State.
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31 Finally, it should be borne in mind that the Court has already held that the definition of waste in Article 1 of Directive 75/442, as amended, is not to be understood as excluding substances and objects which were capable of economic reutilization (Case C-359/88 Zanetti and Others [1990] ECR I-1509, paragraphs 12 and 13; C-422/92 Commission v Germany [1995] ECR I-1097, paragraphs 22 and 23, and Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraphs 47 and 48).
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48 That interpretation is not affected either by Directive 91/156, which amended the first of those two directives, or by Directive 91/689, which repealed the second (see Germany v Commission, cited above, paragraph 23), or by Regulation No 259/93.
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57. That is because in such a situation the taxable person aids the perpetrators of the fraud and becomes their accomplice.
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26. Whilst the provisions of the FEU Treaty concerning freedom of establishment are directed to 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 Member State of origin from hindering the establishment in another Member State of a company incorporated under its legislation, in particular through a subsidiary. In particular, freedom of establishment is hindered if, under a Member State’s legislation, a resident company having a subsidiary in another Member State or in another State that is party to the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3), suffers a disadvantageous difference in treatment for tax purposes compared with a resident company having a subsidiary in the first Member State (see, to that effect, judgment in Nordea Bank , C‑48/13, EU:C:2014:2087, paragraphs 18 and 19).
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19. It is apparent from the Court’s case-law that freedom of establishment is hindered if, under a Member State’s legislation, a resident company having a subsidiary or a permanent establishment in another Member State or in another State that is party to the EEA Agreement suffers a disadvantageous difference in treatment for tax purposes compared with a resident company having a permanent establishment or a subsidiary in the first Member State (see to this effect, in particular, the judgments in Papillon , C‑418/07, EU:C:2008:659, paragraphs 16 to 22, and Argenta Spaarbank , C‑350/11, EU:C:2013:447, paragraphs 20 to 34).
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28. The national provisions which govern compensation for road accidents cannot, therefore, deprive those provisions of their effectiveness.
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38
However, it also follows from the Court’s case-law that placing on the market is a stage subsequent to import. Just as a product lawfully manufactured within the EU may not be placed on the market on that ground alone, the lawful import of a product does not mean that it will automatically be allowed onto the market. A product coming from a third country which is in free circulation is thus assimilated to products originating in the Member States as regards the elimination of customs duties and quantitative restrictions between Member States. Where, however, there is no EU legislation harmonising the conditions of marketing of the products concerned, the Member State in which they are put into free circulation may prevent their being placed on the market if they do not satisfy the conditions laid down for that purpose under national law in compliance with EU law (judgments of 30 May 2002, Expo Casa Manta, C‑296/00, EU:C:2002:316, paragraphs 31 and 32, and of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 95).
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95. The objective of the regulation is to liberalise imports of products originating in non-member States. However, it does not aim to liberalise the placing on the market of those products, which takes place after import (see Case C‑296/00 Expo Casa Manta [2002] ECR I‑4657, paragraphs 30 and 31).
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14 IT IS THEREFORE IN RELATION TO THOSE PROVISIONS THAT THE NATIONAL COURT WILL HAVE TO EXAMINE THE VALIDITY OF L ' OREAL ' S DISTRIBUTION SYSTEM . IT IS FOR THE COURT OF JUSTICE TO PROVIDE IT FOR THIS PURPOSE WITH THE POINTS OF INTERPRETATION OF COMMUNITY LAW , WHICH WILL ENABLE IT TO REACH A DECISION .
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38. In those circumstances, as the Advocate General observes in points 48 and 49 of her Opinion, the fact that the procedural rules of Directive 2003/55 were amended by Directive 2009/73 is not in itself, contrary to the General Court’s conclusion in paragraph 36 of the judgment under appeal, capable of showing that the procedural and substantive provisions laid down in Article 36 of Directive 2009/73 are ‘indivisible’ within the meaning of the judgment in Meridionale Industria Salumi and Others (212/80 to 217/80, EU:C:1981:270).
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9 ALTHOUGH PROCEDURAL RULES ARE GENERALLY HELD TO APPLY TO ALL PROCEEDINGS PENDING AT THE TIME WHEN THEY ENTER INTO FORCE , THIS IS NOT THE CASE WITH SUBSTANTIVE RULES . ON THE CONTRARY , THE LATTER ARE USUALLY INTERPRETED AS APPLYING TO SITUATIONS EXISTING BEFORE THEIR ENTRY INTO FORCE ONLY IN SO FAR AS IT CLEARLY FOLLOWS FROM THEIR TERMS , OBJECTIVES OR GENERAL SCHEME THAT SUCH AN EFFECT MUST BE GIVEN TO THEM .
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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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28. According to settled case-law, all measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as obstacles (see Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37, and Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11).
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11. Article 43 EC requires the elimination of restrictions on the freedom of establishment. All measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as such restrictions (see, inter alia, Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37, Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 26, and Case C-79/01 Payroll and Others [2002] ECR I-8923, paragraph 26).
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50. It follows from the foregoing that the principle according to which the Member States are liable to afford reparation of damage caused to individuals as a result of infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance. It is for the legal system of each Member State to designate the court competent to adjudicate on disputes relating to such reparation.
Conditions governing State liability
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31. At the outset, it should be recalled that, in accordance with settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, for example, Case C‑525/03 Commission v Italy [2005] ECR I‑9405, paragraph 14; Case C‑456/05 Commission v Germany [2007] ECR I‑10517, paragraph 15).
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15. It should be pointed out that, in accordance with settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C‑525/03 Commission v Italy [2005] ECR I‑9405, 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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40 In this connection, it must be noted that the likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case (SABEL, paragraph 22). A global assessment implies some interdependence between the relevant factors (Canon, paragraph 17). For example, a likelihood of confusion may be found, despite a lesser degree of similarity between the goods or services covered, where the marks are very similar and the earlier mark, in particular its reputation, is highly distinctive (Canon, paragraph 19).
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19 It follows that, for the purposes of Article 4(1)(b) of the Directive, registration of a trade mark may have to be refused, despite a lesser degree of similarity between the goods or services covered, where the marks are very similar and the earlier mark, in particular its reputation, is highly distinctive.
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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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39 It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Fisscher, cited above, paragraphs 17 to 24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19).
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44 In those circumstances, overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many contracted-out pension schemes . It is appropriate, however, to provide for an exception in favour of individuals who have taken action in good time in order to safeguard their rights . Finally, it must be pointed out that no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment .
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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. For an argument based on such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see Case C-347/04 Rewe Zentralfinanz [2007] ECR I-2647, paragraph 62 and the case-law cited). There is no such direct link when it is a question, in particular, of different taxes or the tax treatment of different taxpayers (see, to that effect, Case C-168/01 Bosal [2003] ECR I-9409, paragraph 30, and Case C-253/09 Commission v Hungary [2011] ECR I-12391, paragraph 77).
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77. In that context, it should be noted that the two requirements that the levy be identical and applied to one and the same person have been found to be sufficient to establish the existence of such a link (see, inter alia, Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 58; Case C‑168/01 Bosal [2003] ECR I-9409, paragraphs 29 and 30; and Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt , paragraph 42). In addition, it must be noted that the Commission has not expressly disputed that the tax advantage in question is granted to the same taxpayer in relation to the same tax.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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35. In addition, the Court has stated that Article 5(2) of Directive 89/104 also applies in relation to goods and services identical with or similar to those in respect of which the mark was registered (see, to that effect, Case C‑292/00 Davidoff [2003] ECR I‑389, paragraph 30; Adidas-Salomon and Adidas Benelux , paragraphs 18 to 22; and adidas and adidas Benelux , paragraph 37).
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19. In Davidoff (paragraphs 24 and 25), the Court observed in support of its interpretation that, in the light of the overall scheme and objectives of the system of which Article 5(2) of the Directive is part, that article cannot be given an interpretation which would lead to marks with a reputation having less protection where a sign is used for identical or similar goods or services than where a sign is used for non-similar goods or services. It went on to hold, in other words, that where the sign is used for identical or similar goods or services, a mark with a reputation must enjoy protection which is at least as extensive as where a sign is used for non-similar goods or services (Davidoff , paragraph 26).
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37. As a branch, FCE IT does not have any endowment capital. Consequently, the risk associated with the economic activity lies wholly with the FCE Bank. Consequently, FCE IT is dependent upon that company and, with it, constitutes a single taxable person.
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33. In such circumstances, the question referred must be declared inadmissible to the extent that it seeks an interpretation of the EU competition rules (see, by analogy, inter alia, Duomo Gpa and Others , paragraph 24, and Joined Cases C‑162/12 and C‑163/12 Airport Shuttle Express and Others [2014] ECR, paragraphs 37 to 42).
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24. In such circumstances, to the extent that the second question seeks an interpretation of Articles 3 EC, 10 EC and 81 EC, it must be declared inadmissible.
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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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88. It follows from these considerations that the applicant is not in a situation comparable to that of the old Member States which have unrestricted access to the direct support schemes, and that prevents any valid comparison being made (see, by analogy, Case C‑73/90 Spain v Council [1992] ECR I‑5191, paragraph 34).
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34 However, it is apparent from the foregoing considerations concerning the Act of Accession that the applicant' s situation is not comparable with that of the Member States already included in the distribution decided upon in 1983, the Act having defined, in the terms mentioned, the way in which the new Member States were to be integrated into the common fisheries policy, in particular with regard to external fishery resources already available and distributed at the time of accession.
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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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58. It follows that, contrary to the arguments of the applicants in the main proceedings, the additional levy is not to be regarded as a penalty analogous to those provided for under Articles 3 and 4 of Regulation No 536/93. The additional levy on milk amounts to a restriction arising from market policy rules or structural policy (see, to that effect, Case C-177/90 Kühn [1992] ECR I-35, paragraph 13).
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13 Contrary to the contention of the plaintiff in the main proceedings, the legislation in question does not infringe the principle of the protection of legitimate expectations. The Court has consistently held that in the sphere of the common organization of the markets whose purpose involves constant adjustments to meet changes in the economic situation, economic operators cannot legitimately expect that they will not be subject to restrictions arising out of future rules of market or structural policy (see, to this effect, the judgments in Joined Cases 424/85 and 425/85 Frico v Voedesel Voor Zienings In-En Verkoopbureau [1987] ECR 2755, paragraph 33; Case 120/86 Mulder v Minister van Landbouw En Visserij [1988] ECR 2321, paragraph 23, and Case 170/86 Von Deetzen v Hauptzollamt Hamburg-Jonas [1988] ECR 2355, paragraph 12).
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42. It follows from the foregoing that the fact that the marketing authorisation issued under a simplified procedure is personal is justified.
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27 As for the question whether such a rule may still be in conformity with Community law, it should be remembered that, according to the Court's case-law, national rules adopted in the absence of common or harmonised rules and applicable without distinction to national products and to products imported from other Member States may be compatible with the Treaty in so far as they are necessary in order to satisfy overriding requirements relating, inter alia, to fair trading and consumer protection (Case C-39/90 Denkavit v Land Baden-Württemberg [1991] ECR I-3069, paragraph 18), where they are proportionate to the objective pursued and that objective is not capable of being achieved by measures which are less restrictive of intra-Community trade (Case C-368/95 Familiapress v Bauer Verlag [1997] ECR I-3689, paragraph 19).
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18 It should next be pointed out that, according in particular to the judgment in Case 76/86 Commission v Germany [1989] ECR 1021, it follows from Article 30 et seq. of the Treaty that national rules, adopted in the absence of common or harmonized rules and applicable without distinction to national products and to products imported from other Member States where they are lawfully manufactured and marketed, are compatible with the Treaty only in so far as they are necessary on grounds relating to public interest listed in Article 36 of the Treaty or in order to satisfy imperative requirements relating, inter alia, to fair trading and consumer protection.
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58 As regards the establishment of indirect discrimination, the first question is whether a measure such as the rule at issue has a more unfavourable impact on women than on men.
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34. Thus, Member States may, when implementing Article 4(6) of Framework Decision 2002/584, limit, in a manner consistent with the essential rule stated in Article 1(2) thereof, the situations in which it is possible, as an executing Member State, to refuse to surrender a person who falls within the scope of Article 4(6), by making the application of that provision, when the person requested is a national of another Member State having a right of residence on the basis of Article 21(1) TFEU, subject to the condition that that person has lawfully resided for a certain period in that Member State of execution (see, to that effect, Wolzenburg , paragraphs 62 and 74).
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62. In that regard, it must be emphasised that, although the ground for optional non-execution set out in Article 4(6) of the Framework Decision has, just like Article 5(3) thereof, in particular the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires ( Kozłowski , paragraph 45), such an objective, while important, cannot prevent the Member States, when implementing that Framework Decision, from limiting, in a manner consistent with the essential rule stated in Article 1(2) thereof, the situations in which it is possible to refuse to surrender a person who falls within the scope of Article 4(6) thereof.
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33. En tout état de cause, conformément au cadre réglementaire instauré à l’article 17 de la sixième directive dans lequel s’insèrent les huitième et treizième directives, c’est uniquement le lieu d’établissement qui est décisif pour le mode de restitution de la TVA, de sorte qu’un assujetti disposant d’un établissement stable en Italie est à considérer de ce fait comme établi dans ledit État membre et peut demander la déduction de la TVA pour ses acquisitions effectuées en Italie, qu’elles aient été effectuées par l’intermédiaire de cet établissement stable ou directement par son établissement principal situé en dehors de l’Italie.
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36. In the absence of a definition in the EC Treaty of ‘movement of capital’ for the purposes of Article 56(1) EC, the Court has recognised the nomenclature which forms Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [repealed by the Treaty of Amsterdam] (OJ 1988 L 178, p. 5) as having indicative value, even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (later Articles 69 and 70(1) of the EC Treaty both of which were repealed by the Treaty of Amsterdam), it being understood that, in accordance with the introduction to that annex, the list it contains is not exhaustive. Gifts and endowments appear under heading XI, ‘Personal capital movements’, of that annex (judgments in Persche , C‑318/07, EU:C:2009:33, paragraph 24; Mattner , C‑510/08, EU:C:2010:216, paragraph 19; and Commission v Spain , C‑127/12, EU:C:2014:2130, paragraph 52).
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24. In the absence of a definition in the Treaty of ‘movement of capital’ for the purposes of Article 56(1) EC, the Court has previously recognised the nomenclature annexed to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [an article repealed by the Treaty of Amsterdam] (OJ 1988 L 178, p. 5) as having indicative value, even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty were replaced by Articles 73B to 73G of the EC Treaty, now Articles 56 EC to 60 EC), subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see, in particular, Case C‑513/03 van Hilten‑van der Heijden [2006] ECR I‑1957, paragraph 39; Centro di Musicologia Walter Stauffer , paragraph 22; and Case C‑11/07 Eckelkamp [2008] ECR I‑0000, paragraph 38). Gifts and endowments are listed under Heading XI, entitled ‘Personal capital movements’ in Annex I to Directive 88/361.
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106 The exercise of rights conferred on private persons by directly applicable provisions of Community law would, however, be rendered impossible or excessively difficult if their claims for restitution or compensation based on Community law were rejected or reduced solely because the persons concerned had not applied for a tax advantage which national law denied them, with a view to challenging the refusal of the tax authorities by means of the legal remedies provided for that purpose, invoking the primacy and direct effect of Community law.
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23. Articles 5(6) and 6(2) of the Sixth Directive treat certain transactions for which no consideration is actually received by the taxable person as supplies of goods and provisions of services effected for consideration. The purpose of those provisions is to ensure equal treatment as between a taxable person who applies goods or services for his own private use or for that of his staff and a final consumer who acquires goods or services of the same type (see Case C‑230/94 Enkler [1996] ECR I‑4517, paragraph 35; Fillibeck , cited above, par agraph 25; and Fischer and Brandenstein , cited above, paragraph 56). In pursuit of that objective, Articles 5(6) and 6(2)(a) prevent a taxable person who has been able to deduct VAT on the purchase of goods used for his business from escaping payment of that tax when he applies those goods from his business for his own private use or that of his staff and from thereby enjoying advantages to which he is not entitled by comparison with an ordinary consumer who buys goods and pays VAT on them (see Case C‑20/91 De Jong [1992] ECR I‑2847, paragraph 15; Enkler , cited above, paragraph 33; Bakcsi , cited above, paragraph 42; and Fischer and Brandenstein , paragraph 56). Similarly, Article 6(2)(b) of the Sixth Directive prevents a taxable person or members of his staff from obtaining, free of tax, services provided by the taxable person for which a private individual would have to have paid VAT.
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33 Second, in order to prevent a taxable person who has been able to deduct VAT on the purchase of goods used for his business from escaping payment of VAT when he takes those goods away from his business for private purposes and from thereby enjoying undue advantages over an ordinary consumer who buys the goods and pays VAT on them, Article 6(2) of the Sixth Directive provides that "the use of goods forming part of the assets of a business for the private use of the taxable person or of his staff or more generally for purposes other than those of his business where the value added tax on such goods is wholly or partly deductible" is to be treated as a supply of services for consideration (see Case C-20/91 De Jong v Staatssecretaris van Financiën [1992] ECR I-2847, paragraph 15, concerning Article 5(6) of the Sixth Directive, which is based on the same principle).
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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, the Court has held that it is for the national court to assess whether there is a connection between the different claims brought before it, that is to say, a risk of irreconcilable judgments if those claims were determined separately and, in that regard, to take account of all the necessary factors in the case-file (see Freeport , paragraph 41, and Painer , paragraph 83).
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41. It is for the national court to assess whether there is a connection between the different claims brought before it, that is to say, a risk of irreconcilable judgments if those claims were determined separately and, in that regard, to take account of all the necessary factors in the case-file, which may, if appropriate yet without its being necessary for the assessment, lead it to take into consideration the legal bases of the actions brought before that court.
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56 The fact that a non-resident parent company is not liable to ACT is attributable to its not being liable to corporation tax in the United Kingdom, since it is subject to that tax in its State of establishment. Logic therefore requires that a company should not have to make advance payment of a tax to which it will never be liable.
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52 As regards Article 18(3) of Directive 78/686, the rules on mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry laid down by Directive 78/686 do not apply to diplomas obtained in a non-member country, even if they have been recognised by a Member State as equivalent to diplomas awarded in that Member State (see Case C-154/93 Tawil-Albertini [1994] ECR I-451, paragraph 13).
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13 Accordingly, recognition by a Member State of qualifications awarded by non-member States does not bind the other Member States.
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30. In that regard, it should be recalled, first, that a ‘flight’ within the meaning of Regulation No 261/2004 consists in an air transport operation, performed by an air carrier which fixes its itinerary (Case C‑173/07 Emirates Airlines [2008] ECR I‑5237, paragraph 40). Thus, the itinerary is an essential element of the flight, as the flight is operated in accordance with the carrier’s pre-arranged planning.
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5. The Court has interpreted that provision as follows in paragraphs 29 and 30 of its judgment in Case C‑408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I‑12537:
‘29 The infringements referred to in Article 5(2) of [Directive 89/104], where they occur, are the consequence of a certain degree of similarity between the mark and the sign, by virtue of which the relevant section of the public makes a connection between the sign and the mark, that is to say, establishes a link between them even though it does not confuse them (see, to that effect, Case C‑375/97 General Motors [1999] ECR I‑5421, paragraph 23).
30 The existence of such a link must, just like a likelihood of confusion in the context of Article 5(1)(b) of Directive [89/104], be appreciated globally, taking into account all factors relevant to the circumstances of the case (see, in respect of the likelihood of confusion, [Case C‑251/95] SABEL [[1997] ECR I-6191], paragraph 22, and [Case C-425/98] Marca Mode [[2000] ECR I‑4861], paragraph 40).’
National law
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22 As pointed out in paragraph 18 of this judgment, Article 4(1)(b) of the Directive does not apply where there is no likelihood of confusion on the part of the public. In that respect, it is clear from the tenth recital in the preamble to the Directive that the appreciation of the likelihood of confusion 'depends on numerous elements and, in particular, on the recognition of the trade mark on the market, of the association which can be made with the used or registered sign, of the degree of similarity between the trade mark and the sign and between the goods or services identified'. The likelihood of confusion must therefore be appreciated globally, taking into account all factors relevant to the circumstances of the case.
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47. The specific nature of those programmes lies in the fact that they embody a comprehensive and coherent approach, providing practical and coordinated arrangements covering vulnerable zones and, where appropriate, the entire territory, for the reduction and prevention of pollution caused by nitrates from agricultural sources.
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85 It may be seen from Gomes Valente, paragraph 26, that a system of taxation of imported used cars which takes into account the actual depreciation of the vehicles on the basis of general criteria is compatible with the first paragraph of Article 95 of the Treaty only if it is arranged in such a way, making allowance for the reasonable approximations inherent in any system of that type, as to exclude any discriminatory effect.
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26 It should, however, be added that, in order for a system of taxation of imported second-hand cars which takes into account the actual depreciation of the vehicles on the basis of general criteria to be compatible with Article 95 of the Treaty, it would have to be arranged in such a way, making allowance for the reasonable approximations inherent in any system of that type, as to exclude any discriminatory effect.
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27
In that regard, it should be borne in mind that it follows from recitals 9 and 10 of Directive 2001/29 that the latter’s objective is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It follows that ‘communication to the public’ must be interpreted broadly, as recital 23 of the directive indeed expressly states (judgments of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 36, and of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 30 and the case-law cited).
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36. The Court has already held that the limits to the right of residence, as the corollary of the right to have access to the employment market and take up employment, are of two kinds. First, Article 14(1) of Decision No 1/80 itself provides Member States with the possibility of placing restrictions on the presence of a migrant Turk in the host Member State in individual and appropriately justified cases, where, through his own conduct, he constitutes a genuine and serious threat to public order, public security or public health. Second, a family member, duly authorised to join a Turkish worker in a Member State, who leaves the territory of the host State for a significant length of time without legitimate reason as a rule loses the legal status he acquired under the first paragraph of Article 7 of Decision No 1/80 (see Ergat , paragraphs 45, 46 and 48).
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45 There are, admittedly, limits to that right of residence, which is the corollary of the right to have access to the employment market and take up 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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89. It is apparent from the case-law of the Court of Justice that if a given operation or activity is not covered by the prohibition rule laid down in Article 81(1) EC, owing to its neutrality or positive effect in terms of competition, a restriction of the commercial autonomy of one or more of the participants in that operation or activity is not covered by that prohibition rule either if that restriction is objectively necessary to the implementation of that operation or that activity and proportionate to the objectives of one or the other (see to that effect, in particular, judgments in Remia and Others v Commission , 42/84, EU:C:1985:327, paragraphs 19 and 20; Pronuptia de Paris , 161/84, EU:C:1986:41, paragraphs 15 to 17; DLG , C‑250/92, EU:C:1994:413, paragraph 35, and Oude Luttikhuis and Others , C‑399/93, EU:C:1995:434, paragraphs 12 to 15).
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15 With regard, next, to the effects of the agreements or the clauses in the statutes, a combination of clauses such as those requiring exclusive supply and payment of excessive fees on withdrawal, tying the members to the association for long periods and thereby depriving them of the possibility of approaching competitors, could have the effect of restricting competition.
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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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81
On the one hand, as the Court has already held, the question whether a tax is an integral part of an aid financed by a tax depends not on the existence of a competitive relationship between the person liable to pay the tax and the beneficiary of the aid, but only on whether that tax is hypothecated to the aid in question under the relevant national legislation (see, to that effect, judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraphs 93 to 99).
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94. Where a charge constitutes the means by which an aid scheme such as that at issue in the main proceedings is financed, it is clearly in the Community interest that the Member State notifies that scheme, including the method of financing which forms an integral part of it, so that the Commission may have available to it all the information necessary to assess the compatibility of that measure with the common market, an assessment which falls within its exclusive competence, subject to review by the Community judicature (see to that effect, inter alia, Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 52 and the case‑law cited).
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33 Next, it is to be noted that Article 26 of the Sixth Directive makes no reference to in-house services, and that the essential aim of that provision is to avoid the difficulties to which traders would be exposed by application of the general principles of the Sixth Directive concerning transactions involving the supply of services bought in from third parties.
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52 In order to determine whether the conditions for the existence of a transfer have been met, and in particular whether the entity in question in the main proceedings retained its identity after being taken over by the City of Metz, it is for the national tribunal to take into consideration all the facts which go to characterise the transaction in question, including in particular the type of undertaking or business, whether or not its tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its goodwill is transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities are suspended. However, those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see, in particular, Spijkers, paragraph 13, Süzen, paragraph 14, Sánchez Hidalgo and Others, paragraph 29, and Allen and Others, paragraph 26).
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14 IT IS FOR THE NATIONAL COURT TO MAKE THE NECESSARY FACTUAL APPRAISAL , IN THE LIGHT OF THE CRITERIA FOR INTERPRETATION SET OUT ABOVE , IN ORDER TO ESTABLISH WHETHER OR NOT THERE IS A TRANSFER IN THE SENSE INDICATED ABOVE .
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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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84. In addition, the sixth recital in the preamble to Directive 85/337 states that the assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question (see WWF and Others , paragraph 61; Linster , paragraph 53; Boxus and Others , paragraph 42; and Solvay and Others , paragraph 36).
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36. In addition, the sixth recital in the preamble to Directive 85/337 states that the assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question (see WWF and Others , paragraph 61; Linster , paragraph 53; and Boxus and Others , paragraph 42).
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18 Clearly, therefore, the concept of provision of medical care does not lend itself to an interpretation which includes medical interventions carried out for a purpose other than that of diagnosing, treating and, in so far as possible, curing diseases or health disorders.
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8 In that regard, it must be pointed out that, in accordance with settled case-law, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see Case C-470/98 Commission v Greece [2000] ECR I-4657, paragraph 11, and Case C-423/99 Commission v Italy [2000] ECR I-11167, paragraph 10).
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10 In that regard, it must be pointed out that, in accordance with settled case-law, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, inter alia, Case C-470/98 Commission v Greece [2000] ECR I-4657, paragraph 11).
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54. According to unchallenged statements in the documents before the Court, two of the claimants in the main proceedings will receive only 20 and 49% respectively of the benefits to which they were entitled.
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40. Although it certainly cannot be ruled out, as the Commission has stated, that, in accordance with the principle of proportionality, the finding of a minor irregularity should lead only to a partial reimbursement of the amounts paid, it must nevertheless be made clear that, in any event, where, in the context of a project financed by the ERDF, the recipient is found to have infringed one of the fundamental obligations laid down by Directive 92/50, for example by having decided to award a public service contract before the launch of the tendering procedure and by having, in addition, failed to publish a notice in the Official Journal of the European Union , only the possibility that such an irregularity may be penalised by the complete cancellation of the aid can produce the deterrent effect required to ensure the proper management of Structural Funds (see, by analogy, Conserve Italia v Commission , paragraph 101).
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101 It is settled case-law that by virtue of the principle of proportionality ... the measures adopted by Community institutions must not exceed what is appropriate and necessary for attaining the objective pursued ... .
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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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18. 1. garantovaná’s argument as to the ‘mandatory nature’ of Article 23(2) of the regulation must be dismissed at the outset, since the Court has by no means treated that provision as having such a nature. The argument that the Commission may not ‘derogate’ from that provision must likewise be dismissed. The issue is not that of a power to derogate, but the determination of the relevant business year in the light of the factual circumstances of the case (see, to that effect, Britannia Alloys & Chemicals v Commission EU:C:2007:326, paragraphs 25, 29 and 30).
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25. It is clear from the above considerations that, in determining the ‘preceding business year’, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No 17, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed.
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64
It must be remembered that unless a derogation is granted, any deterioration of the status of a body of surface water must be prevented. The obligation to prevent such deterioration thus remains binding at each stage of implementation of Directive 2000/60 and is applicable to every surface water body type and status for which a management plan has been adopted. The Member State concerned is consequently required to refuse authorisation for a project where it is such as to result in deterioration of the status of the body of water concerned or to jeopardise the attainment of good surface water status, unless the view is taken that the project is covered by a derogation under Article 4(7) of the directive (see, to that effect, judgment of 1 July 2015 in Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 50).
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28 In particular, reparation of that loss and damage cannot depend on a prior finding by the Court of an infringement of Community law attributable to the State (see Brasserie du Pêcheur, paragraphs 94 to 96), nor on the existence of intentional fault or negligence on the part of the organ of the State to which the infringement is attributable (see paragraphs 75 to 80 of the same judgment).
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76. As is clear from the case-file, the concept of fault does not have the same content in the various legal systems.
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22 It is apparent from point II of Annex I to Directive 88/361, from the introduction to the nomenclature and from the explanatory notes appearing at the end of Annex I, that the liquidation of an investment in real property constitutes a movement of capital.
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22 Concerning the Belgian Government's letter of 23 August 1999, it should be recalled that, under consistent case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-316/96 Commission v Italy [1997] ECR I-7231, paragraph 14).
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14 As regards Directive 93/53, it should be pointed out that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see Case C-60/96 Commission v France [1997] ECR I-0000, paragraph 15).
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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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20. It is settled case-law that, since Article 1 of the Brussels Convention serves to indicate the area of application of the Convention, it is necessary, in order to ensure, as far as possible, that the rights and obligations which derive from it for the Contracting States and the persons to whom it applies are equal and uniform, that the terms of that provision should not be interpreted as a mere reference to the internal law of one or other of the States concerned. "Civil and commercial matters" must therefore be regarded as an independent concept to be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the national legal systems as a whole (Case 29/76LTU [1976] ECR 1541, paragraph 3; Case 133/78 Gourdain [1979] ECR 733, paragraph 3; Case 814/79 Rüffer [1980] ECR 3807, paragraph 7; Case C-172/91 Sonntag [1993] ECR I-1963, paragraph 18, and Case C-271/00 Baten [2002] ECR I-10489, paragraph 28).
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18 As the Court has consistently held (see, in particular, Case 29/76 LTU v Eurocontrol [1976] ECR 1541, paragraphs 3 and 4; Case 133/78 Gourdain v Nadler [1979] ECR 733, paragraph 3; and Case 814/79 Netherlands v Rueffer [1980] 3807, paragraphs 7 and 8), the concept of "civil matters" in Article 1 of the Convention must be regarded as an independent concept to be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems.
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102. Il y a lieu de rappeler à titre liminaire que la question de savoir si la motivation d’un arrêt du Tribunal est contradictoire ou insuffisante constitue une question de droit pouvant, en tant que telle, être invoquée dans le cadre d’un pourvoi (voir, notamment, arrêts du 7 mai 1998, Somaco/Commission, C‑401/96 P, Rec. p. I‑2587, point 53, et du 8 février 2007, Groupe Danone/Commission, C‑3/06 P, Rec. p. I‑1331, point 45).
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69. In view of the purpose of Directive 2003/86, which is to promote family reunification (Case C-578/08 Chakroun [2010] ECR I-1839, paragraph 43), and the protection it aims to give to third country nationals, in particular minors, the application of that directive cannot be excluded solely because one of the parents of a minor third country national is also the parent of a Union citizen, born of a previous marriage.
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43. Since authorisation of family reunification is the general rule, the faculty provided for in Article 7(1)(c) of the Directive must be interpreted strictly. Furthermore, the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof.
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59. It is common ground that Regulation No 44/2001 does not explicitly define the extent of the verification obligations to which national courts are subject in the course of determining their international jurisdiction.
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51
Furthermore, it cannot be inferred from the Court’s case-law that Article 101(1) TFEU concerns only either (i) the undertakings operating on the market affected by the restrictions of competition or indeed on the markets upstream or downstream of that market or neighbouring markets or (ii) undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice. Indeed, it follows from well-established case-law of the Court that the text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 34 and 35 and the case-law cited).
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35. Indeed, it is apparent from the Court’s well established case-law that the text of Article 81(1) EC refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgments in LTM , 56/65, EU:C:1966:38, p. 358; Consten and Grundig v Commission , 56/64 and 58/64, EU:C:1966:41, p.p. 492 and 493; Musique Diffusion française and Others v Commission , 100/80 to 103/80, EU:C:1983:158, paragraphs 72 to 80; Binon , 243/83, EU:C:1985:284, paragraphs 39 to 47; and Javico , C‑306/96, EU:C:1998:173, paragraphs 10 to 14).
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26. The Council considers that it is clear, from an examination of its aim and content, that the sole purpose of the contested decision is to establish a financial cooperation measure with third countries, by means of a Community instrument.
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48. If the national court therefore concludes that the procedure laid down by the rules at issue in the main proceedings is a consent procedure comprising more than one stage, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, it follows that the competent authority is, in some circumstances, obliged to carry out an environmental impact assessment in respect of a project even after the grant of outline planning permission, when the reserved matters are subsequently approved (see, in this regard, Commission v United Kingdom , paragraphs 103 to 106). This assessment must be of a comprehensive nature, so as to relate to all the aspects of the project which have not yet been assessed or which require a fresh assessment.
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105. In the present case, the rules at issue provide that an environmental impact assessment in respect of a project may be carried out only at the initial outline planning permission stage, and not at the later reserved matters stage.
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12 A company' s assets include all the property which the shareholders have contributed, together with any increase in its value . A company which realizes a profit and adds it to its reserves thereby increases its assets . Conversely, the assets of a company which incurs losses will decline .
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49. In the first place, to the extent that, pursuant to the present ground of appeal, the appellants argue that the General Court infringed Article 81 EC by erroneously interpreting the criteria according to which responsibility may be imputed to an undertaking for a serious and continuous infringement, it should be recalled that, according to the settled case-law of the Court, an infringement of Article 81 EC can result not only from an isolated act but also from a series of acts or from continuous conduct, even where one or several elements of that series of acts or continuous conduct could also constitute in themselves and taken in isolation an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Commission v Anic Partecipazioni , paragraph 81, and Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 258).
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81 Thirdly, it must be remembered that Article 85 of the Treaty prohibits agreements between undertakings and decisions by associations of undertakings, including conduct which constitutes the implementation of those agreements or decisions, and concerted practices when they may affect intra-Community trade and have an anti-competitive object or effect. It follows that infringement of that article may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves an infringement of Article 85 of the Treaty.
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49 Should that be the case, the Court finds that a comparison of the midwives' basic monthly salary with that of the clinical technicians shows that the midwives are paid less.
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50. As the Court stated in Case C-346/95 Blasi [1998] ECR I-481, paragraphs 20 to 22, the words ‘sectors with a similar function’ should be given a broad construction, since their purpose is to ensure that the provision of temporary accommodation similar to, and hence in potential competition with, that provided in the hotel sector is subject to tax. In defining the classes of provision of accommodation which are to be taxed by derogation from the exemption for the leasing or letting of immovable property, in accordance with Article 13B(b)(1) of the Sixth Directive, the Member States enjoy a margin of discretion. It is consequently a matter for the Member States, when transposing that provision, to introduce those criteria which seem to them appropriate in order to draw the distinction between taxable transactions and those which are not, that is the leasing and letting of immovable property.
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21 In defining the classes of provision of accommodation which are to be taxed by derogation from the exemption for the leasing or letting of immovable property, in accordance with Article 13B(b)(1) of the Sixth Directive, the Member States enjoy a margin of discretion. That discretion is circumscribed by the purpose of the derogation, which, in regard to making dwelling accommodation available, is that the - taxable - provision of accommodation in the hotel sector or in sectors with a similar function must be distinguished from the exempted transactions of leasing and letting of immovable property.
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43
Finally, only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine (judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 126).
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19 In circumstances such as those at issue in the main proceedings, therefore, although account is to be taken, under the provisions of Article 47(1)(g) of Regulation No 1408/71, only of the amount of the contributions paid under the legislation concerned, that amount must be updated and revalorised so as to correspond with what the person concerned would have paid had he continued to work under the same conditions in the Member State in question (judgment in Lafuente Nieto, cited above, paragraphs 39 and 40).
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39 Nevertheless, such a finding does not mean that, contrary to the provisions of Article 47(1)(e), whereby that average basis is to be determined by reference only to insurance periods completed under the legislation concerned, the calculation of the average basis for contributions must rest on the amount of contributions paid in the other Member State. It merely implies that, in such a situation, that basis must be the same for the person concerned as if he had remained under the obligation to pay contributions under the legislation concerned.
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66
Thus, measures which, in various forms, mitigate the charges that are normally included in the budget of an undertaking and which therefore, without being subsidies in the strict meaning of the word, are similar in character and have the same effect are considered to constitute aid (judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 101).
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61. It also follows from settled case-law that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation (see, inter alia, Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 to 24; Case 130/78 Salumificio di Cornuda [1979] ECR 867, paragraphs 23 to 27; and Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraphs 19 to 21).
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22ACCORDINGLY ANY PROVISION OF A NATIONAL LEGAL SYSTEM AND ANY LEGISLATIVE , ADMINISTRATIVE OR JUDICIAL PRACTICE WHICH MIGHT IMPAIR THE EFFECTIVENESS OF COMMUNITY LAW BY WITHHOLDING FROM THE NATIONAL COURT HAVING JURISDICTION TO APPLY SUCH LAW THE POWER TO DO EVERYTHING NECESSARY AT THE MOMENT OF ITS APPLICATION TO SET ASIDE NATIONAL LEGISLATIVE PROVISIONS WHICH MIGHT PREVENT COMMUNITY RULES FROM HAVING FULL FORCE AND EFFECT ARE INCOMPATIBLE WITH THOSE REQUIREMENTS WHICH ARE THE VERY ESSENCE OF COMMUNITY LAW .
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9. À cet égard, il suffit de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (voir, notamment, arrêts du 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15).
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42. That said, 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 national court with an answer which will be of use to it and enable it to determine the case before it. Consequently, even if, formally, the referring court has limited its third question to the interpretation of Directive 2004/38, that does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of European Union law which require interpretation in view of the subject-matter of the dispute (see Case C‑243/09 Fuß [2010] ECR I‑9849, paragraphs 39 and 40 and case-law cited).
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39. It must be recalled in this regard that, 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 national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of European Union law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see, to that effect, inter alia, Case C‑45/06 Campina [2007] ECR I‑2089, paragraphs 30 and 31; Joined Cases C‑329/06 and C‑343/06 Wiedemann and Funk [2008] ECR I‑4635, paragraph 45; and Case C‑66/09 Kirin Amgen [2010] ECR I‑0000, paragraph 27).
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35. As a general rule, recourse to the criterion of length of service is appropriate to attain that objective. Length of service goes hand in hand with experience, and experience generally enables the worker to perform his duties better.
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44. It is in that context that the Court has already held that, in the absence of any unifying or harmonising Community measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation ( Gilly , paragraphs 24 and 30; Case C-307/97 Saint‑Gobain ZN [1999] ECR I-6161, paragraph 57; Case C‑385/00 de Groot [2002] ECR I-11819, paragraph 93; Case C-513/03 van Hilten‑van der Heijden [2006] ECR I-1957, paragraphs 47 and 48).
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24 The Member States are competent to determine the criteria for taxation on income and wealth with a view to eliminating double taxation - by means, inter alia, of international agreements - and have concluded many bilateral conventions based, in particular, on the model conventions on income and wealth tax drawn up by the Organisation for Economic Cooperation and Development (`OECD').
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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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33 It is also settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-220/99 Commission v France [2001] ECR I-5831, paragraph 33, and Case C-323/01 Commission v Italy [2002] ECR I-4711, paragraph 8). It follows that in the present case the question of the existence of the alleged breaches must be determined by reference to the original version of the 1988 Regulations, without regard to the measures which later amended and replaced those regulations.
The plea alleging failure to comply with microbiological parameters 57 and 58 of Annex I to Directive 80/778 in public water supplies
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8 It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraph 23).
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159. Il convient d’observer que, premièrement, si la liste contenue à l’article 55, paragraphe 1, second alinéa, de la directive 2004/18 n’est pas exhaustive, elle n’est toutefois pas purement indicative, et ne laisse donc pas les pouvoirs adjudicateurs libres de déterminer quels sont les éléments pertinents à prendre en considération avant d’écarter une offre apparaissant anormalement basse.
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13 According to settled case-law (see, in particular, Case 295/84 Rousseau Wilmot [1985] ECR 3759, paragraph 16, and Case C-347/90 Bozzi [1992] ECR I-2947, paragraph 9), in leaving Member States free to maintain or introduce certain indirect taxes, such as excise duties, on the condition that they are not taxes which can be `characterized as turnover taxes', Article 33 of the Sixth Directive seeks to prevent the functioning of the common system of VAT from being compromised by fiscal measures of a Member State levied on the movement of goods and services, and charged on commercial transactions in a manner comparable to VAT.
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9 The Court has consistently held (see, most recently, its judgment in Case C-200/90 Dansk Denkavit ApS and Another v Skattenministeriet [1992] ECR I-2217) that the purpose of Article 33 is to prevent the introduction of taxes, duties or charges which, through being levied on the movement of goods and services in a way comparable to VAT, would jeopardize the functioning of the common system of VAT. Taxes, duties and charges must in any event be regarded as being imposed on the movement of goods and services in a way comparable to VAT if they exhibit the essential characteristics of VAT.
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65. It follows from paragraph 85 of Texdata Software , EU:C:2013:588 that the latter characteristic may be of some importance when considering possible justifications for restricting the right to be heard before the adoption of an adverse decision.
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35. It follows, first, that, while it might be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others EU:C:1981:62, paragraph 6; Meilicke , C‑83/91, EU:C:1992:332, paragraph 26; and JämO , C‑236/98, EU:C:2000:173, paragraph 31), national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, necessitating a decision on their part (see, inter alia, Rheinmühlen-Düsseldorf , 166/73, EU:C:1974:3, paragraph 3; Mecanarte , C‑348/89, EU:C:1991:278, paragraph 44; Cartesio , C‑210/06, EU:C:2008:723, paragraph 88; and Melki and Abdeli , EU:C:2010:363, paragraph 41).
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31 It is true that the need to provide an interpretation of Community law which will be of use to the national court makes it essential to define the legal context in which the interpretation requested should be placed and that, in that respect, it may be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court, so as to enable the latter to take cognisance of all the features of fact and of law which may be relevant to the interpretation of Community law which it is called upon to give (Irish Creamery Milk Suppliers Association, paragraph 6).
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41. Fourth, if the place of the main provision of services cannot be determined on the basis of the provisions of the contract itself or its actual performance, the place must be identified by another means which respects the objectives of predictability and proximity pursued by the legislature.
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30. It follows that Everything Everywhere’s customers who pay their mobile telephone bills using one of the payment methods which incur the SPHC do not intend to purchase two distinct supplies, namely a supply of a mobile telephone service and a supply whose purpose is to handle their payments. From the customer’s point of view, the supply of payment handling services supposedly provided by the telecommunications services provider to its customers at the time those services are paid for using certain payment methods must, in the circumstances such as those of the main proceedings, be regarded for VAT purposes, as being ancillary to the principal supply of those telecommunications services (see, by analogy, Joined Cases C‑308/96 and C‑94/97 Madgett and Baldwin [1998] ECR I‑6229, paragraphs 24 and 25).
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24 However, as the Advocate General notes in point 36 of his Opinion, traders such as hoteliers who provide services habitually associated with travel frequently make use of services bought in from third parties which take up a small proportion of the package price compared to the accommodation and are among the tasks traditionally entrusted to such traders. Those bought-in services do not therefore constitute for customers an aim in itself, but a means of better enjoying the principal service supplied by the trader.
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34
In the case of transactions which, such as those at issue in the main proceedings, form a chain of two successive supplies that have given rise to only a single intra-Community transport, it is clear from the Court’s case-law, first, that the intra-Community transport can be ascribed to only one of the two supplies, which, therefore, will alone be exempted under Article 138(1) of the VAT Directive (see, to that effect, judgment of 6 April 2006, EMAG Handel Eder, C‑245/04, EU:C:2006:232, paragraph 45).
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30. In that regard, it must be made clear, firstly, that when the law of a Member State provides for such liability on the part of a service provider, that liability may, in any event and as has been stated in particular by the French, German and Greek Governments and by the Advocate General at point 45 of his Opinion, be introduced only on condition that it does not adversely affect the system established by Directive 85/374. Indeed, the application of national rules may not impair the effectiveness of the directive (Case C‑203/99 Veedfald [2001] ECR I‑3569, paragraph 27). Thus, it must remain possible for the producer’s liability to be put in issue when the conditions laid down by the directive for such liability to exist are fulfilled. That possibility of putting the producer’s liability in issue must be open not only to the injured person but also to the service provider who must thus be entitled to use, to that end, a mechanism such as that of third-party proceedings, to which the national court refers in its first question.
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27 Although it is left to national legislatures to determine the precise content of those two heads of damage, nevertheless, save for non-material damage whose reparation is governed solely by national law, full and proper compensation for persons injured by a defective product must be available in the case of those two heads of damage. Application of national rules may not impair the effectiveness of the Directive (see, to this effect, the judgment in Case C-365/88 Hagen [1990] ECR I-1845, paragraph 20) and the national court must interpret its national law in the light of the wording and the purpose of the Directive (see, in particular, the judgment in Case 14/83 Von Colson and Kamann [1984] ECR 891, paragraph 26).
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44. Accordingly, the transfer of the assets at issue in the main proceedings from the Federal Republic of Germany to another Member State cannot mean that the former State must waive its right to tax the capital gains generated within its tax jurisdiction prior to the transfer of those capital gains outside its territory.
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72. In carrying out that examination, the referring court should also bear in mind that the principle of cooperation in good faith laid down in Article 4 TFEU requires the competent authorities in the Member States to use all the means at their disposal to achieve the aim of Article 45 TFEU (see van Munster , paragraph 32, and Leyman , paragraph 49).
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49. Where such a difference in legislation exists, the principle of cooperation in good faith laid down in Article 10 EC requires the competent authorities in the Member States to use all the means at their disposal to achieve the aim of Article 39 EC (see van Munster , paragraph 32).
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44. Dans la mesure où, aux fins de l’évaluation en douane, une priorité est donnée à la valeur transactionnelle, conformément à l’article 29 du code des douanes, cette méthode de détermination de la valeur en douane est supposée être la plus adaptée et la plus fréquemment utilisée.
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56
In the second place, as regards the complaint that the Republic of Bulgaria did not take appropriate measures to prevent the deterioration of a number of habitats of species and the adverse effect on birds caused by the activity associated with the installations resulting from the implementation of the four projects in question in the Kaliakra and Belite Skali SPAs, it should be recalled that an activity complies with Article 6(2) of the Habitats Directive only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives (judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 126 and the case-law cited).
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126. Concerning, secondly, the complaint that, in relation to the operational activities of the open-cast mines in question, the Kingdom of Spain did not comply with Article 6(2) of the Habitats Directive, it should be recalled that an activity complies with that provision only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives (see, to that effect, Case C‑241/08 Commission v France [2010] ECR I‑1697, paragraph 32).
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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. It should be recalled that, as is apparent in particular from Article 1(1) and (2) of Framework Decision 2002/584 and from recitals 5 and 7 in the preamble thereto, the purpose of that decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings, that system of surrender being based on the principle of mutual recognition (see Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, paragraph 28; Case C-66/08 Kozłowski [2008] ECR I-6041, paragraphs 31 and 43; Wolzenburg , paragraph 56; and Case C-261/09 Mantello [2010] ECR I-11477, paragraph 35).
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28. As is clear in particular from Article 1(1) and (2) of the Framework Decision and recitals (5), (6), (7) and (11) in its preamble, the purpose of the Framework Decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings based on the principle of mutual recognition.
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23 The Federal Republic of Germany asserts first of all that the exceeding of the category A1 limiting values cannot entail an obligation to effect improvements and that, in any event, the method of treatment applied where the limiting value is exceeded due to the nature of the soil is that laid down in respect of the next lower category. That method is applied in Germany wherever there are no improvement plans for category A2 water.
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67
However, it is only in circumstances where the action for annulment would unquestionably have been admissible that the Court has held that a person may not plead the invalidity of an act of the European Union before a national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17 to 25; of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraphs 15 to 25; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 29 to 40; and of 22 October 2002, National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraphs 34 to 39). In numerous other cases, the Court has held that it was not established that the action would unquestionably have been admissible (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34; of 8 March 2007, Roquette Frères, C‑441/05, EU:C:2007:150, paragraphs 35 to 48; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 37 to 52; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 24 to 38; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraphs 27 to 32).
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32. Consequently, the first four questions referred, concerning the validity of Decision 2011/346, are admissible.
Admissibility of the question relating to the interpretation of Article 14(1) and (2) of Regulation No 659/1999
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86
According to well established case-law, that obligation to state reasons does not, however, require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, in particular, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraph 42, and of 22 May 2014, Armando Álvarez v Commission, C‑36/12 P, EU:C:2014:349, paragraph 31).
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53. As regards the possibility of setting the point at which a limitation period begins to run as being before the directive in question has been fully transposed, it is true that the Court held in Case C-208/90 Emmott [1991] ECR I-4269, paragraph 23, that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual’s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
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23 It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual' s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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37 Where, in particular, a directive is intended to create rights for individuals, it is indeed the case that Member States must lay down the provisions necessary to ensure that the persons entitled to exercise those rights enjoy judicial protection (see, to this effect, inter alia, Commission v Germany, cited above, paragraph 6).
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6 Article 6 of the First Directive provides inter alia:
`Member States shall provide for appropriate penalties in case of:
- failure to disclose the balance sheet and profit and loss account as required by Article 2(1)(f);
- ...'
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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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53 In that respect it follows from the judgments in Case 174/83 Amman v Council [1986] ECR 2647, paras 19 and 20, in Case 175/83 Culmsee v ESC [1986] ECR 2667, paras 19 and 20, in Case 176/83 Allo v Commission [1986] ECR 2687, paras 19 and 20, in Case 233/83 Agostini v Commission [1986] ECR 2709, paras 19 and 20, in Case 247/83 Ambrosetti v Commission [1986] ECR 2729, paras 12 and 20 and in Case 264/83 Delhez v Commission [1986] ECR 2749, paras 20 and 21 that an obligation to pay default interest can arise only where the amount of the principal sum owed is certain or can at least be ascertained on the basis of established objective factors. The same judgments stated that the powers conferred on the Council by Article 65 of the Staff Regulations for adjusting the remuneration and pensions of officials and other servants and for fixing the weightings applicable to such remuneration and pensions involve the exercise of a discretion. No certainty exists as to the amount by which the remuneration and pensions will be adjusted or the manner in which the weightings will be fixed until the Council has exercised those powers and adopted the regulation.
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20 THE POWERS CONFERRED ON THE COUNCIL BY ARTICLE 65 OF THE STAFF REGULATIONS FOR ADJUSTING THE REMUNERATION AND PENSIONS OF OFFICIALS AND OTHER SERVANTS AND FOR FIXING THE WEIGHTINGS APPLICABLE TO SUCH REMUNERATION AND PENSIONS INVOLVE THE EXERCISE OF A DISCRETION . NO CERTAINTY EXISTS AS TO THE AMOUNT BY WHICH THE REMUNERATION AND PENSIONS WILL BE ADJUSTED OR THE MANNER IN WHICH THE WEIGHTINGS WILL BE FIXED UNTIL THE COUNCIL HAS EXERCISED THOSE POWERS AND ADOPTED THE REGULATION ON THE MATTER . ALTHOUGH IN ITS AFORESAID JUDGMENT OF 6 OCTOBER 1982 IN CASE 59/81 THE COURT HELD THAT THE COUNCIL MUST , IN THE EXERCISE OF ITS DISCRETION , TAKE CERTAIN FACTORS INTO CONSIDERATION , IT DID NOT , CONTRARY TO THE APPLICANTS ' ASSERTION , EITHER DETERMINE THE AMOUNTS WHICH WERE ACTUALLY PAYABLE TO OFFICIALS AND OTHER SERVANTS PURSUANT TO ARTICLE 65 OF THE STAFF REGULATIONS OR ESTABLISH THE OBJECTIVE CRITERIA ENABLING THOSE AMOUNTS TO BE DETERMINED SUFFICIENTLY PRECISELY .
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88 Furthermore, such compatibility also presupposes that the owner of an imported used vehicle is able to challenge the application of a flat-rate method of calculation to that vehicle in order to demonstrate that it leads to taxation exceeding the amount of the residual tax incorporated in the value of similar used vehicles already registered in the national territory (Gomes Valente, paragraph 32).
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26. In order to guarantee the protection intended by Directive 93/13, the Court has already stated on several occasions that the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract (see, inter alia, Banco Español de Crédito , paragraph 41, and Banif Plus Bank , paragraph 21 and the case-law cited).
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21. In order to guarantee the protection intended by the Directive, the Court has already stated on several occasions that the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract (see, inter alia, VB Pénzügyi Lízing , paragraph 48, and Banco Español de Crédito , paragraph 41).
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67
It must be recalled that the prohibition of inhuman or degrading treatment laid down in Article 4 of the Charter corresponds to that laid down in Article 3 of the ECHR and that, to that extent, its meaning and scope are, in accordance with Article 52(3) of the Charter, the same as those conferred on it by that convention.
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24. The terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person ( Skandia , paragraph 32, and Taksatorringen , paragraph 36).
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32 Indeed, according to established case-law, the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly, since they constitute exceptions to the general principle that turnover tax is to be levied on all services supplied for consideration by a taxable person (see to that effect Stichting Uitvoering Financiële Acties, cited above, paragraph 13; Case C-453/93 Bulthuis-Griffioen [1995] ECR I-2341, paragraph 19; Case C-346/95 Blasi [1998] ECR I-481, paragraph 18; and Case C-149/97 Institute of the Motor Industry [1998] ECR I-7053, paragraph 17).
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30 The legality of the employment within the meaning of those provisions, even assuming that it is not necessarily conditional upon possession of a properly issued residence permit, nevertheless presupposes a stable and secure situation as a member of the labour force .
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34. The deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, to that effect, Case 268/83 Rompelman [1985] ECR 655, paragraph 19; Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15; Gabalfrisa and Others , paragraph 44; Midland Bank , paragraph 19, and Abbey National , paragraph 24).
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19 As a preliminary point, it must be recalled that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities, provided that such activities are themselves, in principle, subject to VAT (see, to this effect, Case 268/83 Rompelman v Minister van Financiën [1985] ECR 655, paragraph 19, Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15, and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 44). However, by way of exception, a taxable person who, like Samuel Montagu, carries out exempt transactions pursuant to Article 13B(d)(1) to (5) of the Sixth Directive in the circumstances provided for in Article 17(3)(c) is also entitled under that provision to deduct VAT to the extent that he has used input goods and services for the purpose of such exempt transactions.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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18
The need to provide an interpretation of EU law which will be of use to the national court means that the national court must define the factual and legal context of the questions it is asking or, at the very least, explain the assumptions of fact on which those questions are based (see orders of 8 September 2011, Abdallah, C‑144/11, not published, EU:C:2011:565, paragraph 10 and the case-law cited; of 19 March 2015, Andre, C‑23/15, not published, EU:C:2015:194, paragraph 5 and the case-law cited, and the judgment of 10 March 2016, Safe Interenvíos, C‑235/14, EU:C:2016:154, paragraph 114).
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114
As is clear from settled case-law reflected in Article 94 of the Rules of Procedure of the Court of Justice, in the context of the cooperation between the Court of Justice and the national courts established in Article 267 TFEU the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based (see, to this effect, judgment in Azienda sanitaria locale n. 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 47). The Court is empowered to rule on the interpretation of EU provisions only on the basis of the facts which the national court puts before it (order in Argenta Spaarbank, C‑578/14, EU:C:2015:372, paragraph 14).
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17 Such limitations on the right of deduction have an impact on the level of the tax burden and must be applied in a similar manner in all the Member States . Consequently, derogations are permitted only in the cases expressly provided for in the directive .
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57. First of all, in Commission v Council (EU:C:1971:32, paragraph 86), the Court held that to have suggested to third countries, at an advanced stage of the negotiations in respect of an international agreement, that there was now a new distribution of powers within the European Union could jeopardise the successful outcome of those negotiations. That does not correspond at all to the situation in which there is disclosure, at most, of a divergence of opinion between institutions as to the legal basis of a decision authorising the negotiation of an international agreement. Nor does it mean that the decision in question could, on that basis, be invalidated.
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86 AT THAT STAGE OF THE NEGOTIATIONS, TO HAVE SUGGESTED TO THE THIRD COUNTRIES CONCERNED THAT THERE WAS NOW A NEW DISTRIBUTION OF POWERS WITHIN THE COMMUNITY MIGHT WELL HAVE JEOPARDIZED THE SUCCESSFUL OUTCOME OF THE NEGOTIATIONS, AS WAS INDEED RECOGNIZED BY THE COMMISSION' S REPRESENTATIVE IN THE COURSE OF THE COUNCIL' S DELIBERATIONS .
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188
It follows, in particular, that the trader which has paid those duties is able, in principle, to claim their repayment only if and in so far as the three-year period laid down for that purpose in the first subparagraph of Article 236(2) of the Customs Code has not expired (see, to this effect, judgment in CIVAD, C‑533/10, EU:C:2012:347, paragraph 21).
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26
The Italian Republic contends that the General Court correctly required the Commission, for the purposes of reclassifying the existing aid as new aid, to provide evidence that the infringement of the authorisation conditions for the existing aid scheme constitutes a substantial alteration to that scheme, which, in the opinion of that Member State, must be assessed having regard to Article 4(1) of Regulation No 794/2004. It is apparent from the case-law that it is only where the alteration made to existing aid is not clearly severable from the original aid scheme and that alteration also affects the actual substance of that original scheme that the latter is transformed into a new aid scheme (judgment of the Court of Justice of 9 October 1984, Heineken Brouwerijen, 91/83 and 127/83, EU:C:1984:307, paragraphs 21 and 22, and judgment of the General Court of 30 April 2002, Government of Gibraltar v Commission, T‑195/01 and T‑207/01, EU:T:2002:111). Furthermore, it follows from the case-law of the Court of Justice that the criteria laid down by case-law also apply where the alteration constitutes an infringement of the authorisation conditions for an existing aid scheme (judgment of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraphs 91, 94 and 95).
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22 IN REPLY TO THE FOURTH QUESTION IT MUST THEREFORE BE STATED THAT THE PROHIBITION ON THE PUTTING INTO EFFECT OF AID MEASURES , WHICH IS LAID DOWN IN THE LAST SENTENCE OF ARTICLE 93 ( 3 ), APPLIES TO THE PROPOSED AID PROGRAMME IN ITS ENTIRETY AND IN THE FINAL VERSION ADOPTED BY THE NATIONAL AUTHORITIES . IF THE PLAN INITIALLY NOTIFIED HAS IN THE MEANTIME UNDERGONE ALTERATIONS OF WHICH THE COMMISSION HAS NOT BEEN INFORMED , THE PROHIBITION APPLIES TO THE PLAN AS ALTERED , UNLESS THE ALTERATION IN QUESTION IS IN ACTUAL FACT A SEPARATE AID MEASURE WHICH SHOULD BE ASSESSED SEPARATELY AND WHICH IS THEREFORE NOT SUCH AS TO INFLUENCE THE ASSESSMENT WHICH THE COMMISSION HAS ALREADY MADE OF THE INITIAL PLAN ; IN THAT CASE , THE PROHIBITION APPLIES ONLY TO THE AID MEASURE INTRODUCED BY THE ALTERATION .
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54. With respect to the period within which such proof must be furnished, it must be noted that the purpose of that proof is to contest the jurisdiction of the Member State which recovers the customs duties while identifying the Member State which will have jurisdiction to recover those duties where the presumption as to the place of the offence or irregularity is considered to be rebutted.
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47. Furthermore, the fact that the divorces are registered in the registers of births, marriages and deaths confirms that the notarial activity in those matters is connected with the exercise of official authority (judgment in Colegio de Oficiales de la Marina Mercante Española , C‑405/01, EU:C:2003:515, paragraph 42).
Findings of the Court
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42. In this case, Spanish law confers on masters and chief mates of merchant ships flying the Spanish flag, first, rights connected to the maintenance of safety and to the exercise of police powers, particularly in the case of danger on board, together with, in appropriate cases, powers of investigation, coercion and punishment, which go beyond the requirement merely to contribute to maintaining public safety by which any individual is bound, and, secondly, authority in respect of notarial matters and the registration of births, marriages and deaths, which cannot be explained solely by the requirements entailed in commanding the vessel. Such duties constitute participation in the exercise of rights under powers conferred by public law for the purposes of safeguarding the general interests of the flag State.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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24. Next, as Rohm Semiconductor and the European Commission submit, in order to ensure legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and their properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, judgments in Peacock , C‑339/98, EU:C:2000:573, paragraph 9; Codirex Expeditie , C‑400/06, EU:C:2007:519, paragraph 16 and the case-law cited; and Sysmex Europe , C‑480/13, EU:C:2014:2097, paragraph 29).
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9 As the Court has repeatedly held, the decisive criterion for the customs classification of goods must be sought generally in their objective characteristics and qualities, as defined in the relevant heading of the Common Customs Tariff and in the notes to the sections or chapters (see, in particular, Case C-11/93 Siemens Nixdorf [1994] ECR I-1945, paragraph 11, and Case C-382/95 Techex [1997] ECR I-7363, paragraph 11).
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76. It is to be noted, in that regard, that the rules prohibiting restrictions on freedom of movement and freedom of establishment laid down in Articles 28 and 31 of the EEA Agreement are identical to those established in Articles 39 EC and 43 EC.
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60 Although, as follows from paragraph 41 of SFEI and Others, cited above, the national courts and the Commission fulfil complementary and separate roles within the actual system of supervision of State aid established by the Treaty, the same applies, a fortiori, where what is in issue is the examination of a parafiscal charge, intended to finance an aid scheme, in the light of Treaty provisions other than those concerning State aid, with a view to remedying, if necessary, infringements of Community law which have not been confirmed in the procedure provided for under Article 93 of the Treaty.
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41 As regards the supervision of Member States' compliance with their obligations under Articles 92 and 93 of the Treaty, the national courts and the Commission fulfil complementary and separate roles.
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28 However, as the Court held in Case C-231/94 Faaborg-Gelting Linien v Finanzamt Flensburg [1996] ECR I-2395, paragraphs 12 to 14, concerning the classification of restaurant transactions, where the transaction in question comprises a bundle of features and acts, regard must first be had to all the circumstances in which that transaction takes place.
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24. The fact that, after its completion, the project may not have produced such effects is immaterial to that assessment. It is at the time of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question (see, to that effect, Case C‑209/02 Commission v Austria [2004] ECR I‑1211, paragraphs 26 and 27, and Waddenvereniging and Vogelbeschermingsvereniging , paragraphs 56 and 59).
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26. Having regard to the content of those expert ' s reports and in the absence of evidence to the contrary, the inevitable conclusion is that at the time of the adoption of the decision of 14 May 1999, the Austrian authorities were not justified in considering that the planned extension of the golf course in question in the present case, coupled with the measures prescribed by that decision, was not such as significantly to disturb the corncrake population in the " Wörschacher Moos" SPA and would not adversely affect the integrity of that SPA.
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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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101 In its judgment of 27 March 1980 in Case 129/79 Macarthys Ltd v Smith [1980] ECR 1275 the Court held that comparisons in cases of actual discrimination falling within the scope of the direct application of Article 119 are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service (paragraph 15).
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15 IT IS CLEAR THAT THE LATTER PROPOSITION , WHICH IS THE SUBJECT OF QUESTION 2 ( A ), IS TO BE CLASSED AS INDIRECT AND DISGUISED DISCRIMINATION , THE IDENTIFICATION OF WHICH , AS THE COURT EXPLAINED IN THE DEFRENNE JUDGMENT , CITED ABOVE , IMPLIES COMPARATIVE STUDIES OF ENTIRE BRANCHES OF INDUSTRY AND THEREFORE REQUIRES , AS A PREREQUISITE , THE ELABORATION BY THE COMMUNITY AND NATIONAL LEGISLATIVE BODIES OF CRITERIA OF ASSESSMENT . FROM THAT IT FOLLOWS THAT , IN CASES OF ACTUAL DISCRIMINATION FALLING WITHIN THE SCOPE OF THE DIRECT APPLICATION OF ARTICLE 119 , COMPARISONS ARE CONFINED TO PARALLELS WHICH MAY BE DRAWN ON THE BASIS OF CONCRETE APPRAISALS OF THE WORK ACTUALLY PERFORMED BY EMPLOYEES OF DIFFERENT SEX WITHIN THE SAME ESTABLISHMENT OR SERVICE .
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45. 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 présente 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 (arrêt du 14 avril 2011, Commission/Espagne, C‑343/10, point 54 et jurisprudence citée).
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23. In that regard, it must be recalled that, 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-119/05 Lucchini [2007] ECR I-0000, paragraph 43 and the case-law cited).
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43. In this regard, it must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, 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-326/00 IKA [2003] ECR I-1703, paragraph 27; Case C-145/03 Keller [2005] ECR I-2529, paragraph 33; and Case C-419/04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 19).
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57. The answer to the second question must therefore be that sickness cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination.
Costs
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79. Thus, even if, according to their wording, the rules on freedom of movement for workers are intended, in particular, to secure the benefit of national treatment in the host State, they also preclude the State of origin from obstructing the freedom of one of its nationals to accept and pursue employment in another Member State (see, to that effect, Terhoeve , paragraphs 27 to 29).
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27 However, as the Court has stated, in particular in Case C-419/92 Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda [1994] ECR I-505, at paragraph 9, any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in another Member State falls within the scope of the aforesaid provisions.
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64. S’agissant de la position adoptée par la Commission au cours de l’instruction de la plainte des requérants, il convient de souligner que cette institution n’est pas tenue, dans le cadre d’une plainte déposée au titre de l’article 226 CE, d’engager une procédure d’infraction, mais dispose d’un pouvoir d’appréciation discrétionnaire excluant le droit pour les particuliers d’exiger qu’elle prenne position dans un sens déterminé. En conséquence, les personnes ayant déposé une telle plainte n’ont pas la possibilité de saisir le juge communautaire d’un recours contre une éventuelle décision de classement de celle-ci (voir, en ce sens, arrêt du 14 février 1989, Star Fruit/Commission, 247/87, Rec. p. 291, point 11). Il en résulte qu’une prise de position de la Commission intervenue au cours de l’instruction d’une plainte ne saurait seule, en principe, sauf circonstances particulières susciter une confiance légitime dans le chef de plaignants.
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44. That element, however, is not such as to establish, automatically and on its own, that the contested terms are unfair. It is for the referring court to decide on the application of the general criteria set out in Articles 3 and 4 of Directive 93/13 to a specific term, which must be considered in relation to all the circumstances of the particular case (see, to that effect, Case C‑237/02 Freiburger Kommunalbauten [2004] ECR I‑3403, paragraphs 19 to 22; Pannon GSM , paragraphs 37 to 43; VB Pénzügyi Lízing , paragraphs 42 and 43; and order in Pohotovosť , paragraphs 56 to 60).
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20. The Annex to which Article 3(3) of the Directive refers only contains an indicative and non-exhaustive list of terms which may be regarded as unfair. A term appearing in the list need not necessarily be considered unfair and, conversely, a term that does not appear in the list may none the less be regarded as unfair ( Commission v Sweden, paragraph 20).
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40. In that regard, it is ultimately for the referring court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent such legislation satisfies those conditions. However, the Court, which is called on to provide answers of use to the referring court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the referring court to give judgment ( Ottica New Line di Accardi Vincenzo paragraphs 48 and 49 and the case-law cited).
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18
Furthermore, it is established that Member States may adopt implementing measures for a regulation provided that they do not thereby obstruct its direct applicability or conceal its nature as an act of EU law; that they specify that they are acting in exercise of a discretion conferred on them under that regulation; and that they adhere to the parameters laid down thereunder (judgments of 25 October 2012, Ketelä, C‑592/11, EU:C:2012:673, paragraph 36; of 15 May 2014, Szatmári Malom, C‑135/13, EU:C:2014:327, paragraph 55; and of 7 July 2016, Občina Gorje, C‑111/15, EU:C:2016:532, paragraph 35).
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36. In that regard, it follows from settled case-law that Member States may adopt rules for the application of a regulation if they do not obstruct its direct applicability and do not conceal its Community nature, and if they specify that a discretion granted to them by that regulation is being exercised, provided that they adhere to the parameters laid down under it ( Danske Svineproducenter , paragraph 41 and the case-law cited).
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66. If the period of two weeks at issue in the main proceedings began to run from the time when the accused person actually became aware of the penalty order, that order providing information on the accusation within the meaning of Article 6 of Directive 2012/13, it would be certain that the whole of that period is available to that person.
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137. The Republic of Austria’s argument that the authority vested with the power to adopt regulations must act in a manner consistent with the Directive cannot alter that conclusion. Suffice it to state that implementation in accordance with a directive’s provisions by that authority cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see, to this effect, Case C-236/95 Commission v Greece [1996] ECR I‑4459, paragraphs 12 and 13, and Case C-144/99 Commission v Netherlands [2001] ECR I‑3541, paragraph 21).
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12 Admittedly, the Council of State interprets Article 52 of the presidential decree in conformity with the directive and holds that any interested party has the capacity to seek suspension of operation of measures of contracting authorities.
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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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