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25 Second, as the Court has consistently held, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, inter alia, Case 8/81 Becker [1982] ECR 53, paragraph 25; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 29; and Case C-319/97 Kortas [1999] ECR I-3143, paragraph 21).
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25 THUS , WHEREVER THE PROVISIONS OF A DIRECTIVE APPEAR , AS FAR AS THEIR SUBJECT-MATTER IS CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE , THOSE PROVISIONS MAY , IN THE ABSENCE OF IMPLEMENTING MEASURES ADOPTED WITHIN THE PRESCRIBED PERIOD , BE RELIED UPON AS AGAINST ANY NATIONAL PROVISION WHICH IS INCOMPATIBLE WITH THE DIRECTIVE OR IN SO FAR AS THE PROVISIONS DEFINE RIGHTS WHICH INDIVIDUALS ARE ABLE TO ASSERT AGAINST THE 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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59. 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 judgment of 25 July 2008 in Case C‑504/06 Commission v Italy , paragraph 24 and the case‑law cited).
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24. En effet, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, en ce sens, arrêts du 26 avril 2007, Commission/Italie, C‑135/05, Rec. p. I‑3475, point 36, et du 10 avril 2008, Commission/Italie, C‑442/06, non encore publié au Recueil, point 42).
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45. Secondly, with regard more specifically to the rights of customers, Article 3(3) of Directive 2003/55 — as was held in relation to that directive in paragraph 45 of the judgment in RWE Vertrieb , C‑92/11, EU:C:2013:180 — requires Member States to ensure a high level of consumer protection in relation to the transparency of the contract terms and conditions. That finding applies also to Article 3(5) of Directive 2003/54.
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88. In accordance with the settled case-law of the Court, complaints directed against the grounds of a decision of the General Court included purely for the sake of completeness cannot lead to the decision being set aside and are therefore nugatory (judgments in Dansk Rørindustri and Others v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 148, and Wünsche Handelsgesellschaft International v Commission , C‑7/14 P, EU:C:2015:205, paragraph 72).
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72. Or, selon une jurisprudence constante de la Cour, les griefs dirigés contre des motifs surabondants d’une décision du Tribunal ne sauraient entraîner l’annulation de cette décision et sont donc inopérants (arrêt Dansk Rørindustri e.a./Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P à C‑208/02 P et C‑213/02 P, EU:C:2005:408, point 148, ainsi qu’ordonnances Piau/Commission, C‑171/05 P, EU:C:2006:149, point 86, et Saint-Gobain Glass Deutschland/Commission, C‑503/07 P, EU:C:2008:207, point 62).
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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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71
Moreover, when approving the operational programme concerned, it was already well established that, in the context of financing the common agricultural policy, a strict interpretation of the conditions for the European Union taking over costs was necessary, since the management of the common agricultural policy, on the basis of equality between traders in the Member States, requires that the national authorities of a Member State, by means of a wide interpretation of a specific provision, should not favour traders of that Member State (see, to that effect, judgment of 27 February 1985, Italy v Commission, 55/83, EU:C:1985:84, paragraph 31 and the case-law cited, and of 6 November 2014, Netherlands v Commission, C‑610/13 P, not published, EU:C:2014:2349, paragraph 41).
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31 AS THE COURT HELD IN ITS JUDGMENT OF 7 FEBRUARY 1979 ( CASE 11/76 , GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS V COMMISSION , ( 1979 ) ECR 245 ) ARTICLE 8 OF REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ) PERMITS THE COMMISSION TO CHARGE TO THE FUND ONLY SUMS PAID IN ACCORDANCE WITH THE RULES LAID DOWN IN THE VARIOUS SECTORS OF AGRICULTURAL PRODUCTION WHILE LEAVING THE MEMBER STATES TO BEAR THE BURDEN OF ANY OTHER SUM PAID . MOREOVER , THE COURT ADDED THAT A STRICT INTERPRETATION OF THE CONDITIONS UNDER WHICH EXPENDITURE IS TO BE BORNE BY THE FUND IS NECESSARY BECAUSE THE MANAGEMENT OF THE COMMON AGRICULTURAL POLICY IN CONDITIONS OF EQUALITY BETWEEN TRADERS IN THE MEMBER STATES REQUIRES THAT THE NATIONAL AUTHORITIES OF A MEMBER STATE SHOULD NOT , BY THE EXPEDIENT OF A WIDE INTERPRETATION OF A GIVEN PROVISION , FAVOUR OR TREAT UNFAVOURABLY TRADERS OF THAT STATE IN COMPARISON WITH THOSE OF OTHER MEMBER STATES .
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62. Unlike pharmacists, non-pharmacists by definition lack training, experience and responsibility equivalent to those of pharmacists. Accordingly, they do not provide the same safeguards as pharmacists.
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31. Under the settled case-law of the Court, the principles of protection of legitimate expectations and legal certainty form part of the Community legal order. On that basis, these principles must be respected by the institutions of the Community, but also by Member States in the exercise of the powers conferred on them by Community directives (see in particular Case C-381/97 Belgocodex [1998] ECR I‑8153, paragraph 26, and Case C-376/02 ‘Goed Wonen’ [2005] ECR I-3445, paragraph 32). It follows that national authorities are obliged to respect the principle of protection of the legitimate expectations of economic agents.
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26 It must be recalled in this regard that the principle of protection of legitimate expectations and the principle of legal certainty form part of the Community legal order and must be observed by the Member States when they exercise the powers conferred on them by Community directives. However, in the specific circumstances of the present case, it is not for this Court but for the national court to determine whether a breach of those principles has been committed by the retroactive repeal of a law in respect of which the implementing decree was never adopted.
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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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43. If that should prove not to be the case, it would then be for the competent national authorities to show that that barrier to trade can be justified, in view of the products liable to be affected, by the objectives of protection of road safety and protection of the environment, which, according to the case-law, constitute overriding reasons in the public interest capable of justifying a measure having an effect equivalent to quantitative restrictions and that it is not only necessary, but proportionate in relation to such objectives (see, inter alia, judgment in Commission v Belgium , C‑150/11, EU:C:2012:539, paragraphs 54 and 55).
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54. In accordance with equally settled case-law, it is for the competent national authorities to show that their legislation complies with the criteria referred to in the preceding paragraph (see, to that effect, Case C-265/06 Commission v Portugal [2008] ECR I-2245, paragraph 39; Case C-297/05 Commission v Netherlands , paragraph 76; and Case C-286/07 Commission v Luxembourg , paragraph 37). Such justification can be specifically demonstrated only by reference to the circumstances of the case (Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 67).
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10 THAT OPTION IS NOT AVAILABLE TO WHOLLY UNEMPLOYED FRONTIER WORKERS WHO , UNDER THE EXPLICIT PROVISIONS OF ARTICLE 71 ( 1 ) ( A ) ( II ), ARE ENTITLED TO CLAIM BENEFITS SOLELY FROM THE MEMBER STATE IN WHICH THEY RESIDE .
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76. It is for the national court to verify in accordance with the rules of evidence of national law, provided that the effectiveness of Community law is not undermined, whether action constituting such an abusive practice has taken place in the case before it (see Case C-515/03 Eichsfelder Schalchtbetrieb [2005] ECR I-0000, paragraph 40).
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40. It is for the national court to verify in accordance with the rules of evidence of national law, provided that the effectiveness of Community law is not undermined, whether action constituting such an abusive practice has taken place in the case before it.
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39 It follows that non-recognition of a judgment for the reasons set out in Article 27(2) of the Convention is possible only where the defendant was in default of appearance in the original proceedings. Consequently, that provision may not be relied upon where the defendant appeared, at least if he was notified of the elements of the claim and had the opportunity to arrange for his defence.
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26. Article 4(4)(a) of the Directive establishes, for the benefit of trade marks with a reputation, a wider form of protection than that provided for in Article 4(1). The specific condition of that protection consists of a use of the later mark without due cause which takes or would take unfair advantage of, or is or would be detrimental to, the distinctive character or the repute of the earlier mark (see, to that effect, in respect of Article 5(2) of the Directive, Marca Mode , paragraph 36; Adidas-Salomon and Adidas Benelux , paragraph 27, and Case C-102/07 adidas and adidas Benelux [2008] ECR I-0000, paragraph 40).
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36 The interpretation is not inconsistent with Article 5(2) of the Directive which establishes, for the benefit of well-known trade marks, a form of protection whose implementation does not require the existence of a likelihood of confusion. That provision applies to situations in which the specific condition of the protection consists of a use of the sign in question without due cause which takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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23 The second subparagraph of Article 40(3) of the Treaty provides that the common organization of agricultural markets to be established under the common agricultural policy "shall exclude any discrimination between producers or consumers within the Community." That prohibition of discrimination is simply a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law (see, in particular, the judgment in Joined Cases 201/85 and 202/85 Klensch v Secrétaire d' Etat [1986] ECR 3477, paragraph 9).
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9 THAT FINDING IS BORNE OUT BY A CONSISTENT LINE OF CASES ( JUDGMENTS OF 19 OCTOBER 1977 IN JOINED CASES 117/76 AND 16/77 RUCKDESCHEL & CO . AND HANSE LAGERHAUS STROH & CO . V HAUPTZOLLAMT HAMBURG-ST . ANNEN ( 1977 ) ECR 1753 , AND IN JOINED CASES 124/76 AND 20/77 SA MOULINS ET HUILERIES DE PONT-A-MOUSSON V ONIC ( 1977 ) ECR 1795 ), IN WHICH THE COURT HELD THAT THE PROHIBITION OF DISCRIMINATION LAID DOWN IN ARTICLE 40 ( 3 ) OF THE EEC TREATY IS MERELY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THAT PRINCIPLE REQUIRES THAT SIMILAR SITUATIONS SHALL NOT BE TREATED DIFFERENTLY UNLESS DIFFERENTIATION IS OBJECTIVELY JUSTIFIED .
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33
Second, it is on the territory of that Member State that the alleged damage occurs. Indeed, in the event of infringement, by means of a website, of the conditions of a selective distribution network, the damage which the distributor may claim is the reduction in the volume of its sales resulting from the sales made in breach of the conditions of the network and the ensuing loss of profits.
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50 It is for those reasons that the Court has repeatedly held that Article 17 of the Convention dispenses with any objective connection between the relationship in dispute and the court designated (Case 56/79 Zelger v Salinitri [1980] ECR 89, paragraph 4; MSG, paragraph 34; and Benincasa, paragraph 28).
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4 BY CONTRAST , ARTICLE 17 , WHICH OCCURS IN SECTION 6 OF THE CONVENTION INTITLED ' ' PROROGATION OF JURISDICTION ' ' AND WHICH PROVIDES FOR THE EXCLUSIVE JURISDICTION OF THE COURT DESIGNATED BY THE PARTIES IN ACCORDANCE WITH THE PRESCRIBED FORM , PUTS ASIDE BOTH THE RULE OF GENERAL JURISDICTION - PROVIDED FOR IN ARTICLE 2 - AND THE RULES OF SPECIAL JURISDICTION - PROVIDED FOR IN ARTICLE 5 - AND DISPENSES WITH ANY OBJECTIVE CONNEXION BETWEEN THE LEGAL RELATIONSHIP IN DISPUTE AND THE COURT DESIGNATED . IT THUS APPEARS THAT THE JURISDICTION OF THE COURT FOR THE PLACE OF PERFORMANCE ( PROVIDED FOR IN ARTICLE 5 ( 1 )) AND THAT OF THE SELECTED COURT ( PROVIDED FOR IN ARTICLE 17 ) ARE TWO DISTINCT CONCEPTS AND ONLY AGREEMENTS SELECTING A COURT ARE SUBJECT TO THE REQUIREMENTS OF FORM PRESCRIBED BY ARTICLE 17 OF THE CONVENTION .
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47. No appeal was lodged against the BAI v Commission judgment, and its operative part and ratio decidendi therefore became final.
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22 As regards the concept of payment within the meaning of Article 11(2)(b) of Directive 92/85, that provision is intended to ensure that, during maternity leave, female workers receive an income at least equal to that prescribed by Article 11(3) of that directive, irrespective of whether it is paid in the form of an allowance, pay or a combination of the two (Case C-411/96 Boyle and Others [1998] ECR I-6401, paragraphs 31 to 33).
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32 According to Article 11(3) of Directive 92/85, the allowance `shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation'. This is intended to ensure that, during her maternity leave, the worker receives an income at least equivalent to the sickness allowance provided for by national social security legislation in the event of a break in her activities on health grounds.
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29. It should be noted that the expressions ‘video reception’ and ‘television reception’ refer to two identical concepts ( British Sky Broadcasting Group and Pace , paragraph 68).
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41
Moreover, it follows from the case-law of the Court that if the supply price is lower than the cost price, the deduction cannot be limited in proportion to the difference between the supply price and the cost price, even if the supply price is considerably lower than the cost price, unless it is purely symbolic (see, to that effect, judgment of 21 September 1988 in Commission v France, 50/87, EU:C:1988:429, paragraph 16).
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16 The combined effect of the rules referred to above is that, in the absence of any provision empowering the Member States to limit the right of deduction granted to taxable persons, that right must be exercised immediately in respect of all the taxes charged on transactions relating to inputs .
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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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43. In that regard, it should be borne in mind that while budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy (see, to that effect, Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraph 59, and Case C‑196/02 Nikoloudi [2005] ECR I‑1789, paragraph 53). Reasons of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see, by analogy, Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 34 and the case-law cited, and Case C‑384/08 Attanasio Group [2010] ECR I‑2055, paragraph 55).
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59. As regards the German Government's argument concerning the additional burden associated with allowing female workers to take advantage of the scheme at issue in the main proceedings even where they have acquired entitlement to a retirement pension at the full rate, the Court observes that although budgetary considerations may underlie a Member State's choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against one of the sexes (Case C-343/92 De Weerd and Others [1994] ECR I-571, paragraph 35).
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En précisant que l’EUIPO « peut » décider de ne pas tenir compte de telles preuves, ladite disposition investit en effet ce dernier d’un large pouvoir d’appréciation à l’effet de décider, tout en motivant sa décision sur ce point, s’il y a lieu ou non de prendre ceux-ci en compte (arrêts du 13 mars 2007, OHMI/Kaul, C‑29/05 P, EU:C:2007:162, point 43, ainsi que du 26 septembre 2013, Centrotherm Systemtechnik/OHMI et centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, point 78).
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49. As regards the second plea of inadmissibility, it should be recalled that Article 38(1)(c) of the Rules of Procedure of the Court provides that any application initiating proceedings must contain, in particular, the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. It is therefore the task of the Commission, in any application made pursuant to Article 226 EC, to indicate the complaints being made in a sufficiently precise and coherent manner, so as to enable the Member State to prepare its defence and the Court to verify the existence of the failure to fulfil obligations which is being claimed (see, in particular, Case C‑98/04 Commission v United Kingdom [2006] ECR I‑4003, paragraph 18, and Case C‑540/07 Commission v Italy [2009] ECR I‑10983, paragraph 17).
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18. The reasoned opinion and therefore the action, which, according to settled case-law, illustrated inter alia by the judgment in Case C‑234/91 Commission v Denmark [1993] ECR I‑6273, paragraph 16, may not be based on pleas and grounds other than those put forward in that opinion, must therefore set out the complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of Community law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged.
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10 It was following those judgments that the Council adopted, on 20 March 1989, the abovementioned Regulation No 764/89. That Regulation inserted a new Article 3a in Regulation No 857/84 providing essentially that producers who have not, pursuant to an undertaking entered into under Regulation No 1078/77, delivered milk during the reference year are to obtain, subject to certain conditions, a special reference quantity calculated on the basis of the quantity of milk delivered or the quantity of milk equivalent sold by the producer during the twelve calendar months preceding the month in which the application for the non-marketing or conversion premium was made.
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39. As regards, secondly, the principle of fiscal neutrality, which is inherent in the common system of VAT, it must be remembered that, according to case-law, that principle precludes treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes (Case C-109/02 Commission v Germany [2003] ECR I‑12691, paragraph 20; and Kingscrest Associates and Montecello , paragraph 54).
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20. None the less, in exercising that power, the Member States must respect the principle of fiscal neutrality. As is apparent from the Court's case-law, that principle precludes in particular treating similar goods and supplies of services, which are thus in competition with each other, differently for VAT purposes, so that those goods or supplies must be subjected to a uniform rate (see Case C-267/99 Adam [2001] ECR I-7467, paragraph 36).
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41. It is true that in the long term, depending on how manufacturers and consumers in fact behave, the programme should have a positive environmental effect as a result of the reduction in energy consumption which it should achieve. However, that is merely an indirect and distant effect, in contrast to the effect on trade in office equipment which is direct and immediate.
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58. In that connection, regard must be had to the settled case‑law of the Court to the effect that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of European Union law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied (see, in particular, Case C‑347/00 Barreira Pérez [2002] ECR I‑8191, paragraph 44; Joined Cases C‑453/02 and C‑462/02 Linneweber and Akritidis [2005] ECR I‑1131, paragraph 41; and Case C‑292/04 Meilicke and Others [2007] ECR I‑1835, paragraph 34).
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44 In that connection, regard must be had to the case-law of the Court to the effect that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 234 EC, the Court gives to a rule of Community law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied (see, in particular, Case C-262/96 Sürül [1999] ECR I-2685, paragraph 107).
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40. Selon une jurisprudence constante, toute réglementation des États membres susceptible d’entraver directement ou indirectement, actuellement ou potentiellement, le commerce intracommunautaire est à considérer comme une mesure d’effet équivalent à des restrictions quantitatives, interdite par l’article 28 CE (arrêts du 11 juillet 1974, Dassonville, 8/74, Rec. p. 837, point 5, et du 5 février 2004, Commission/Italie, C‑270/02, Rec. p. I‑1559, point 18).
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41 En ce qui concerne les dispositions du règlement n_ 3665/87 relatives à la force majeure, il est de jurisprudence constante que, la notion de force majeure n'ayant pas un contenu identique dans les divers domaines d'application du droit communautaire, sa signification doit être déterminée en fonction du cadre légal dans lequel elle est destinée à produire ses effets (voir, notamment, arrêt du 7 décembre 1993, Huygen e.a., C-12/92, Rec. p. I-6381, point 30). Le règlement n_ 3665/87 n'est donc pas contraire aux principes généraux du droit communautaire en ce qu'il précise et limite les effets de la force majeure en matière de restitutions à l'exportation.
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30 The Court has consistently held that, since the concept of force majeure does not have the same scope in the various spheres of application of Community law, its meaning must be determined by reference to the legal context in which it is to operate (see, most recently, Case C-124/92 An Bord Bainne Co-operative & Compagnie Inter-Agra SA [1993] ECR I-5061, paragraph 10).
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27. With regard to jurisdiction to hear a claim of infringement of a national mark in a situation such as that in the main proceedings, it must be considered that both the objective of foreseeability and that of sound administration of justice militate in favour of conferring jurisdiction, in respect of the damage occurred, on the courts of the Member State in which the right at issue is protected.
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45 The Court has already held that defects similar to those by which the contested decision is vitiated, that is to say relating to the lack of authentication of the act, without there being any serious doubt that the Commission had actually decided to adopt the instrument in question, are not sufficiently serious for the decision to be regarded as non-existent (see Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraphs 48 to 53). However, the Court has also held that such defects may entail annulment of a decision for infringement of essential procedural requirements (Commission v BASF, cited above, paragraphs 72 to 78).
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51 In this case, the Court of First Instance did not question that at the meeting of 21 December 1988, as is shown by the relevant minutes, the Commission did decide to adopt the operative part of a decision as set out in those minutes, whatever defects may have affected that decision.
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43. It follows both from the duty of loyalty of the Member States and from the requirements of effectiveness referred to in Directive 2008/115 that the obligation imposed on the Member States by Article 8 of that directive to carry out the removal must be fulfilled as soon as possible ( Achughbabian , paragraph 45).
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41. On that point, it is common ground that protection of the environment constitutes one of the essential objectives of the Community (see Case 240/83 ADBHU [1985] ECR 531, paragraph 13, Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 8, Case C‑213/96 Outokumpu [1998] ECR I‑1777, paragraph 32). In that regard, Article 2 EC states that the Community has as its task to promote ‘a high level of protection and improvement of the quality of the environment’ and, to that end, Article 3(1)(l) EC provides for the establishment of a ‘policy in the sphere of the environment’.
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8 The Court has already held in its judgment of 7 February 1985 in Case 240/83 Procureur de la République v Association de défense des brûleurs d' huiles usagées (( 1985 )) ECR 531 that the protection of the environment is "one of the Community' s essential objectives", which may as such justify certain limitations of the principle of the free movement of goods . That view is moreover confirmed by the Single European Act .
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33. The question whether Unibet’s action is admissible before the Swedish courts, which is the subject of the first question referred by the Högsta domstolen, is irrelevant for the purposes of determining whether the reference for a preliminary ruling is admissible.
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Par ailleurs, la Cour a déjà confirmé la possibilité de prendre en considération l’interprétation de dispositions imposant
des mesures restrictives en tenant compte de la rédaction divergente de ces dispositions dans les différentes versions linguistiques,
de leur contexte et de leur finalité (voir, en ce sens, arrêt du 5 mars 2015, Ezz e.a./Conseil, C‑220/14 P, EU:C:2015:147,
points 69 à 72).
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72. The General Court correctly concluded, therefore, in paragraph 67 of the judgment under appeal, that Article 1(1) of Decision 2011/172 had to be interpreted as being directed not only at persons being prosecuted but also persons the subject of judicial proceedings connected to criminal proceedings for ‘misappropriation of Egyptian State funds’ who may on that basis be described as persons associated with the individuals the subject of those criminal proceedings.
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61. Afin qu’une mesure nationale restreignant une liberté de circulation garantie par le traité puisse être justifiée par des motifs de lutte contre la fraude et l’évasion fiscales, le but spécifique d’une telle restriction doit être de faire obstacle à des comportements consistant à créer des montages purement artificiels, dépourvus de réalité économique, dans le but d’éluder l’impôt normalement dû sur les bénéfices générés par des activités réalisées sur le territoire national (voir, en ce sens, arrêts précités Cadbury Schweppes et Cadbury Schweppes Overseas, point 55; Test Claimants in the Thin Cap Group Litigation, point 74, ainsi que SIAT, point 40).
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30. Thus the Court has already ruled that medical services effected for prophylactic purposes may benefit from exemption under Article 13A(1)(b) or (c) of the Sixth Directive. Even in cases where the persons who are the subject of examinations or other medical intervention of a prophylactic nature are not suffering from any disease or health disorder, the inclusion of those services within the meaning of ‘medical care’ and ‘the provision of medical care’ is consistent with the objective of reducing the cost of healthcare, which is common to both the exemption under Article 13A(1)(b) of the Sixth Directive and that under (c) of that paragraph (see, to that effect, L.u.P. , paragraph 29, and the case-law cited). Accordingly, medical services supplied for the purpose of protecting, including maintaining or restoring, human health may benefit from the exemption under Article 13A(1)(b) and (c) of that directive (see, to that effect, Unterpertinger , paragraphs 40 and 41, and D’Ambrumenil and Dispute Resolution Services , paragraphs 58 and 59).
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40. While it follows from that case-law that the " provision of medical care" must have a therapeutic aim, it does not necessarily follow therefrom that the therapeutic purpose of a service must be confined within an especially narrow compass (see, to that effect, Commission v France , paragraph 23). Paragraph 40 of the judgment in Kügler shows that medical services effected for prophylactic purposes may benefit from the exemption under Article 13A(1)(c). Even in cases where it is clear that the persons who are the subject of examinations or other medical interventions of a prophylactic nature are not suffering from any disease or health disorder, the inclusion of those services within the meaning of " provision of medical care" is consistent with the objective of reducing the cost of health care, which is common to both the exemption under Article 13A(1)(b) and that under (c) of that paragraph (see Commission v France , paragraph 23, and Kügler , paragraph 29).
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42
In the first place, the referring court points out that the name ‘Verlados’ refers, first, to the name of the undertaking Viiniverla, which manufactures that drink, and, secondly, to the village of Verla, which is known to Finnish consumers, so that that name is not capable of misleading those consumers.
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83. In the application of Article 92(3) of the Treaty, the Commission has a wide discretion the exercise of which involves economic and social assessments which must be made in a Community context (see, inter alia, Case 310/85 Deufil v Commission [1987] ECR 901, paragraph 18). Judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with and to verifying the accuracy of the facts relied on and that there has been no error of law, manifest error of assessment in regard to the facts or misuse of powers (see Case C‑351/98 Spain v Commission , cited above, paragraph 74, and Case C‑114/00 Spain v Commission , cited above, paragraph 93).
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74 In the application of Article 92(3) of the Treaty, the Commission has a wide discretion the exercise of which involves economic and social assessments which must be made in a Community context (see, for example, Deufil v Commission, cited above, paragraph 18). Judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with and to verifying the accuracy of the facts relied on and that there has been no error of law, manifest error of assessment in regard to the facts or misuse of powers.
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43. Cette analyse de la taxe danoise sur l’immatriculation était confirmée notamment par le fait qu’une voiture neuve achetée dans un but autre qu’une mise en circulation dans les zones où s’applique le code de la route danois, par exemple dans le cas d’une voiture de collection, d’une voiture destinée à être utilisée exclusivement sur un terrain privé ou d’une voiture vouée à être transférée en dehors du territoire national, ne donnait pas lieu, nonobstant l’existence d’une livraison à l’intérieur de celui-ci, à la perception de la taxe d’immatriculation (arrêt De Danske Bilimportører, précité, point 19). En revanche, la taxe litigieuse est due même lorsque l’achat de la voiture n’est pas suivi de l’immatriculation de celle-ci sur le territoire polonais.
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20. In the present case, it must be ascertained whether, having regard to the essential features of the transaction at issue in the main proceedings, the reprographer makes to his customer, being a typical consumer, several distinct principal supplies or a single supply (see, to that effect, Levob Verzekeringen and OV Bank , paragraph 20, and Aktiebolaget , paragraph 20).
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20. Taking into account, firstly, that it follows from Article 2(1) of the Sixth Directive that every transaction must normally be regarded as distinct and independent and, secondly, that a transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system, the essential features of the transaction must in the first place be ascertained in order to determine whether the taxable person is making to the customer, being a typical consumer, several distinct principal supplies or a single supply (see, by analogy, CPP , paragraph 29).
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43 The answer to the fourth part of the first question must therefore be that any problems arising because the funds held by the trustees are insufficient to equalize benefits must be resolved on the basis of national law in the light of the principle of equal pay and that such problems cannot affect the answers to the previous questions.
Question 2(1)
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36. As regards, more specifically, Article 49 TFEU, the Court has consistently held that that provision cannot be applied to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member State (see, to that effect, inter alia, Case 20/87 Gauchard [1987] ECR 4879, paragraph 12; Case 204/87 Bekaert [1988] ECR 2029, paragraph 12; Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 33; and Case C‑84/11 Susisalo and Others [2012] ECR, paragraph 18 and the case-law cited).
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18. According to settled case-law, the provisions of the Treaty on freedom of establishment and the freedom to provide services do not apply to purely internal situations in a Member State (see, to that effect, Joined Cases C-54/88, C-91/88 an C-14/89 Nino and Others [1990] ECR I-3537, paragraph 11; Case C-134/94 Esso Española [1995] ECR I-4223, paragraph 17; and Case C-389/05 Commission v France [2008] ECR I-5397, paragraph 49).
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68 Nevertheless, when such a risk has been eliminated, adjustment in respect of improperly invoiced VAT cannot be dependent upon the discretion of the tax authorities.
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41. It follows that the obligation to hold consultations laid down in Article 2 of Directive 98/59 is deemed to arise where the employer is contemplating collective redundancies or is drawing up a plan for collective redundancies (see, to that effect, Case 284/83 Dansk Metalarbejderforbund and Specialarbejderforbundet i Danmark [1985] ECR 553, paragraph 17).
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17 FOR THOSE REASONS THE REPLY TO THE SECOND QUESTION MUST BE THAT COUNCIL DIRECTIVE NO 75/129 OF 17 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO COLLECTIVE REDUNDANCIES APPLIES ONLY WHERE THE EMPLOYER HAS IN FACT CONTEMPLATED COLLECTIVE REDUNDANCIES OR HAS DRAWN UP A PLAN FOR COLLECTIVE REDUNDANCIES .
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36 In accordance with Article 227(3) of the Treaty and Convention 64/533, the special arrangements for association set out in Part Four of the Treaty apply to the OCTs, including the Netherlands Antilles.
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74. Besides the principle of non-discrimination on grounds of nationality, the principle of equal treatment of tenderers is also to be applied to such public service contracts even in the absence of discrimination on grounds of nationality (see, by analogy, Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraph 48, and Case C‑410/04 ANAV [2006] ECR I‑3303, paragraph 20).
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48. According to the Court’s case-law, Articles 43 EC and 49 EC are specific expressions of the principle of equal treatment (see Case C-3/88 Commission v Italy [1989] ECR 4035, paragraph 8). The prohibition on discrimination on grounds of nationality is also a specific expression of the general principle of equal treatment (see Case 810/79 Überschär [1980] ECR 2747, paragraph 16). In its case-law relating to the Community directives on public procurement, the Court has stated that the principle of equal treatment of tenderers is intended to afford equality of opportunity to all tenderers when formulating their tenders, regardless of their nationality (see, to that effect, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraphs 33 and 54). As a result, the principle of equal treatment of tenderers is to be applied to public service concessions even in the absence of discrimination on grounds of nationality.
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102
In those circumstances, it must be held that the first time limit is to enable an unhurried examination of a draft implementing act before a meeting, by the Management Committee members, and that the second must enable them to express their views on the draft. That finding is supported by Article 3(4) of Regulation No 182/2011 which states that, ‘until the committee delivers an opinion, any committee member may suggest amendments’.
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55
As a preliminary point, it must be recalled that an appellant is entitled to lodge an appeal relying on pleas arising from the judgment under appeal itself and which seek to criticise, in law, its merits (see, to that effect, judgments of 10 April 2014 in Commission and Others v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 102, and 10 April 2014 in Areva and Others v CommissionC‑247/11 P and C‑253/11 P, ECR, EU:C:2014:257, paragraphs 118 and 170 and the case-law cited).
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170. As pointed out at paragraph 118 above, a plea which has its origins in the judgment under appeal may be relied on in an appeal.
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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. It is true that the Court has already held that the interpretation of provisions of an act of the Union in situations outside that act’s scope is justified where those provisions have been made applicable to such situations by national law directly and unconditionally in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, to that effect, judgment in Nolan , EU:C:2012:638, paragraph 47 and the case-law cited).
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47. Thus, an interpretation by the Court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, to that effect, Cicala , paragraph 19 and case-law cited).
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34 It is undisputed that the use of mopeds on a beach used for breeding by the Caretta caretta turtle is, particularly owing to the noise pollution, liable to disturb that species during the laying period, the incubation period and the hatching of the eggs, as well as during the baby turtles' migration to the sea. It is also established that the presence of small boats near the breeding beaches constitutes a source of danger to the life and physical well-being of the turtles.
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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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19. 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 which forms Annex I to Directive 88/361 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; articles 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 (see, inter alia, Case C‑513/03 van Hilten-van der Heijden [2006] ECR I‑1957, paragraph 39; Eckelkamp and Others , paragraph 38; Arens-Sikken , paragraph 29; and Block , paragraph 19). Gifts and endowments appear under heading XI, ‘Personal capital movements’, of Annex I to Directive 88/361 (Case C‑318/07 Persche [2009] ECR I‑359, paragraph 24).
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47. Therefore, an obstacle to leaving the Member State of which the worker is a national, as mentioned in Singh and Eind , is created by the refusal to confer, when that worker returns to his Member State of origin, a derived right of residence on the family members of that worker who are third‑country nationals, where that worker resided with his family members in the host Member State pursuant to, and in conformity with, Union law.
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18. In that regard, it is necessary to state, at the outset, that, in accordance with settled case‑law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the forthcoming judicial decision, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 33; Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 43; and Case C‑11/07 Eckelkamp and Others [2008] ECR I‑6845, paragraphs 27 and 32).
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27. In that regard, it should 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 forthcoming 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 (Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 33, and Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 43).
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61. An undertaking is not necessarily deprived of freedom of action merely because the decisions concerning it are controlled by the controlling authority, if it can still carry out a large part of its economic activities with other operators.
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22. It is not disputed that the obligations arising under Article 6(3)(a) and (b), Article 9(1), Article 10(1) and Article 11 of Regulation No 1150/2000 were already applicable under Article 6(2)(a) and (b), Article 9(1), Article 10(1) and Article 11 of Regulation No 1552/89 (see, concerning Articles 9(1) and 11, Case C‑363/00 Commission v Italy , paragraph 23).
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23. In the present case, it is not disputed that the obligations arising under Article 9(1), the first subparagraph of Article 10(3) and Article 11 of Regulation No 1150/2000 were already applicable under Article 9(1), the first subparagraph of Article 10(3) and Article 11 of Regulation No 1552/89.
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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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17 It is only where transposition of a directive is pointless for reasons of geography that it is not mandatory (see, to that effect, Case 420/85 Commission v Italy [1987] ECR 2983, paragraph 5). That is not so in the case of the island of Ireland, as may be seen from map 3.7 in Annex I to Decision No 1692/96/EC of the European Parliament and of the Council of 23 July 1996 on Community guidelines for the development of the trans-European transport network (OJ 1996 L 228, p. 1).
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5 IN THE PROCEEDINGS BEFORE THE COURT, THE ITALIAN GOVERNMENT STATED, WITHOUT BEING CONTRADICTED BY THE COMMISSION, THAT, IN VIEW OF THE ABSENCE OF A NETWORK OF INLAND WATERWAYS LINKING ITALY AND THE OTHER MEMBER STATES, DIRECTIVE 82/603/EEC DOES NOT REQUIRE ITALY TO IMPLEMENT ANY PROVISIONS EXTENDING THE SYSTEM IN QUESTION TO COMBINED ROAD AND RAIL TRANSPORT BY INLAND WATERWAY .
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37SITUATED IN THE CONTEXT OF THE RULES GOVERNING INTERVENTION ARRANGEMENTS LAID DOWN BY REGULATIONS NO 804/68 AND NO 985/68 OF THE COUNCIL , AND MORE PARTICULARLY IN THAT OF PRIVATE STORAGE AID , REGULATION NO 2517/74 MAKES IT POSSIBLE TO DISCERN THE REASONS JUSTIFYING THE ADDITION OF THE LAST SUBPARAGRAPH TO ARTICLE 29 OF REGULATION NO 685/69 .
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29 The Court has thus held that, since in certain sectors in which the activity is based essentially on manpower, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. In those circumstances, the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking in a stable way (Süzen, paragraph 21, Hernández Vidal and Others, paragraph 32, and Hidalgo and Others, paragraph 32).
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32 Since, in certain labour-intensive sectors, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, it must be recognised that such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. In those circumstances, the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis (Süzen, cited above, paragraph 21).
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47. The Community Customs Code provides for the charging of customs duties on imports of products for military use, such as those at issue, from third countries. There is no provision of the Community customs legislation which, in respect of the period of imports at issue, namely from 1 January 1998 to 31 December 2002, provided for any specific exemption from customs duties on imports of products of that type. Consequently, in respect of that period, nor was there any express exemption from the obligation to make payment to the competent authorities of the duties which were payable, accompanied, as appropriate, by payment of default interest.
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29. In this respect, the Court has previously ruled that a discharge for the purposes of Article 5(2) of Directive 91/271 exists irrespective of whether the waste water discharges directly or indirectly into a sensitive area (see, to that effect, Case C 396/00 Commission v Italy [2002] ECR I-3949, paragraphs 29 to 32). As the Advocate General observed at point 72 of her Opinion, this is in keeping with the high level of protection provided for by Community policy on the environment under Article 174(2) EC.
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30 The second subparagraph of Article 3(1) of the directive, which deals with discharges of urban waste water into receiving waters considered sensitive areas, and Article 5(2) of the directive, which requires urban waste water entering collecting systems to be subjected to more stringent treatment before discharge into sensitive areas, make no distinction between direct and indirect discharges into sensitive areas.
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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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26
The basis of assessment for a supply of services is everything which makes up the consideration for the service provided and a supply of services is therefore taxable only if there is a direct link between the service supplied and the consideration received. It follows that a supply of services is effected ‘for consideration’ within the meaning of Article 2(1)(c) of Directive 2006/112, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient (judgments of 3 March 1994 in Tolsma, C‑16/93, EU:C:1994:80, paragraphs 13 and 14; 21 March 2002 in Kennemer Golf, C‑174/00, EU:C:2002:200, paragraph 39; and 6 October 2009 in SPÖ Landesorganisation Kärnten, C‑267/08, EU:C:2009:619, paragraph 19).
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39 In that regard, according to the case-law of the Court, the basis of assessment for a provision of services is everything which makes up the consideration for the service provided and a provision of services is taxable only if there is a direct link between the service provided and the consideration received (Apple and Pear Development Council, paragraphs 11 and 12, and Case C-16/93 Tolsma [1994] ECR I-743, paragraph 13). A supply of services is therefore taxable only if there exists between the service provider and the recipient a legal relationship in which there is a reciprocal performance, the remuneration received by the provider of service constituting the value actually given in return for the service supplied to the recipient (Tolsma, paragraph 14).
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48. That procedure is initiated at the request of a Member State seeking the approval of national provisions derogating from a harmonisation measure adopted at Community level. In its request, that Member State is at liberty to comment on the decision it asks to have adopted, as is quite clear from Article 95(4) EC, which requires that Member State to state the grounds for maintaining the national provisions in question. The Commission in turn must be able, within the prescribed period, to obtain the information which proves to be necessary without being required once more to hear the applicant Member State.
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100. It is therefore a new plea which extends the subject-matter of the dispute and which for that reason cannot be put forward for the first time at the appeal stage (see, in particular, Case C‑16/06 P Les Éditions Albert René v OHIM [2008] ECR I-10053, paragraph 125).
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125. Secondly, as regards the assertion that the Board of Appeal was wrong to decide that Article 8(5) of Regulation No 40/94 was not part of the subject-matter of the dispute, it should be observed that, as the appellant has raised a ground of appeal which was not part of the action brought against that decision before the Court of First Instance, that argument constitutes a new plea which extends the subject-matter of the dispute and which therefore cannot be put forward for the first time at the appeal stage.
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22 In other words, it may be acknowledged that, in principle, the application by the host Member State of its minimum-wage legislation to providers of services established in another Member State pursues an objective of public interest, namely the protection of employees.
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10 It also follows from the Court' s case-law (judgment in Case 186/83 Arie Botzen and Others v Rotterdamsche Droogdok Maatschappij B.V. [1985] ECR 519, paragraph 16) that Article 3(1) of the Directive covers the transferor' s rights and obligations arising from a contract of employment or an employment relationship existing on the date of the transfer and entered into with employees who, in order to carry out their duties, were assigned to the part of the undertaking or business transferred.
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16 THE ANSWER TO THE SECOND AND THIRD QUESTIONS MUST THEREFORE BE THAT ARTICLE 3 ( 1 ) OF DIRECTIVE NO 77/187 MUST BE INTERPRETED AS NOT COVERING THE TRANSFEROR ' S RIGHTS AND OBLIGATIONS ARISING FROM A CONTRACT OF EMPLOYMENT OR AN EMPLOYMENT RELATIONSHIP EXISTING ON THE DATE OF THE TRANSFER AND ENTERED INTO WITH EMPLOYEES WHO , ALTHOUGH NOT EMPLOYED IN THE TRANSFERRED PART OF THE UNDERTAKING , PERFORMED CERTAIN DUTIES WHICH INVOLVED THE USE OF ASSETS ASSIGNED TO THE PART TRANSFERRED OR WHO , WHILST BEING EMPLOYED IN AN ADMINISTRATIVE DEPARTMENT OF THE UNDERTAKING WHICH HAS NOT ITSELF BEEN TRANSFERRED , CARRIED OUT CERTAIN DUTIES FOR THE BENEFIT OF THE PART TRANSFERRED .
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31 In accordance with the principle set out in paragraph 25 of this judgment, the recipient of aid could not, therefore, have had at that time a legitimate expectation that its grant was lawful.
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101. Thirdly, as regards the alleged possibility of having recourse to a measure more appropriate and less restrictive than that provided for by the contested regulation, in order to attain the objectives pursued by the Commission, such as the imposition of a minimum sale price, it must be observed that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 13; Joined Cases C‑133/93, C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR I-4863, paragraph 41; Antillean Rice Mills and Others v Commission , cited above, paragraph 52; and Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81).
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52 First, as regards the principle of proportionality, it must be pointed out that, in order to determine whether a provision of Community law is in conformity with that principle, it must be ascertained whether the means which the provision applies are suitable for attaining the objective pursued and do not go beyond what is necessary in order to do so.
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44. In those circumstances, the second ground of complaint is well founded.
Third ground of complaint: incompatibility with Articles 43 EC and 49 EC of the condition requiring the economic operator to have a minimum share capital
Arguments of the parties
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45
The Hellenic Republic complains that the General Court rejected its first and second pleas in law in the action by relying on the settled case-law of the Court that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are to be regarded as State aid (judgment in Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 84 and the case-law cited). In so doing, the General Court failed to have regard to the fact that those principles are valid only under normal market and economic conditions and not under the exceptional conditions experienced by the Greek economy in 2009.
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84. Measures which, whatever their form, are likely directly or indirectly to favour certain undertakings (Case 6/64 Costa [1964] ECR 585, at p. 595) or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions (Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 60, and Case C-342/96 Spain v Commission [1999] ECR I-2459, paragraph 41) are regarded as aid.
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63. However, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that identified on the basis of the presumptions set out in Article 4(2) to (4) of the Convention, it is for that court to refrain from applying Article 4(2) to (4).
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25. Furthermore, it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice and also from Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34; Case C-41/00 P Interporc v Commission [2003] ECR I-2125, paragraph 15; and Case C-131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I-7795, paragraph 49).
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15. By application lodged at the Registry of the Court of First Instance on 12 April 1996, the applicant and two other German firms brought an action for annulment of the Commission's decision of 26 January 1996 (Case T-50/96).
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25 Moreover, the Directive requires that, if a Member State chooses to penalize breach of the prohibition of discrimination by the award of compensation, that compensation must be such as to guarantee real and effective judicial protection, have a real deterrent effect on the employer and must in any event be adequate in relation to the damage sustained. Purely nominal compensation would not satisfy the requirements of an effective transposition of the Directive (Von Colson and Kamann, paragraphs 23 and 24).
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22. It is apparent from recital (11) in the preamble to Regulation No 2700/2000 that the purpose of the amendment of Article 220(2)(b) of the Customs Code was to define, for the particular case of preferential arrangements, the concepts of error by the customs authorities and good faith of the person liable for payment. Thus, without having recourse to an amendment of the substance, the aim of that article is t o explain the above concepts, which were already contained in the initial version of Article 220 and defined by the case-law of the Court (see, inter alia, Joined Cases C‑153/94 and C-204/94 Faroe Seafood and Others [1996] ECR I‑2465, paragraphs 92 and 97; Case C‑15/99 Sommer [2000] ECR I‑8989, paragraphs 35 to 37; order in Case C‑30/00 William Hinton & Sons [2001] ECR I‑7511, paragraphs 68 to 73, and Ilumitrónica , paragraphs 42 and 43).
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42 The Court has also held that it follows from the wording of Article 5(2) itself that the legitimate expectations of the person liable attract the protection provided for in that article only if it was the competent authorities `themselves' which created the basis for those expectations. Thus, only errors attributable to acts of those authorities confer entitlement to the waiver of post-clearance recovery of customs duties (Mecanarte, paragraph 23, and Faroe Seafood, paragraph 91).
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50
Moreover, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. By contrast, the condition relating to a single objective requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraphs 247 and 248).
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60. It should be noted in this connection that, even if — in order to ensure full compliance with the Court’s judgment — the penalty payment should be payable in its entirety until such time as the Member State has taken all the measures necessary to bring to an end the failure to fulfil obligations established, nevertheless, in certain specific cases, a penalty which takes account of the progress that the Member State may have made in complying with its obligations may be envisaged (see, to that effect, judgments in Commission v Spain , EU:C:2003:635, paragraphs 43 to 51; in Commission v Italy , EU:C:2011:740, paragraphs 47 to 55; and in Commission v Belgium , EU:C:2013:659, paragraphs 73 and 74).
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48. In the light of that particular factor, it is conceivable that the defendant Member State might manage significantly to increase the extent of its implementation of the Directive but not to implement it fully in the short term. If the amount of the penalty payment were to stay the same it would continue to be due in its entirety for as long as the Member State concerned had not achieved complete implementation of the Directive.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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68. In those circumstances, the General Court was right to find, in paragraphs 61 and 62 of the judgment under appeal, that the reputation of the earlier mark and the similarity between the goods respectively covered by the marks at issue – even if those factors may be taken into consideration in order to assess likelihood of confusion – do not affect the assessment of the similarity of the signs at issue, with the result that they are incapable of calling into question the lack of similarity that was found to exist (see, to that effect, judgment of 11 December 2008 in Case C-57/08 P Gateway v OHIM , not published in the ECR, paragraphs 55 to 57).
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55. Fourthly, as regards the taking into account of the renown of the earlier marks in assessing the similarities of the signs at issue, it must be pointed out that, having found, in paragraph 48 of the judgment under appeal, first, that the dominant element of the mark applied for is the word ‘activy’ and, secondly, that the descriptive element of that mark is the word ‘gateway’ – which constitutes, as was stated in paragraph 49 of this judgment, an assessment of a factual nature – the Court of First Instance carried out an analysis in which it took account, in particular, of the distinctive and dominant elements of the marks at issue.
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96. Ainsi que la Cour l’a jugé à maintes reprises, un acte n’est entaché de détournement de pouvoir que s’il apparaît, sur la base d’indices objectifs, pertinents et concordants, avoir été pris exclusivement, ou à tout le moins de manière déterminante, à des fins autres que celles dont il est excipé ou dans le but d’éluder une procédure spécialement prévue par le traité pour parer aux circonstances de l’espèce (voir en ce sens, notamment, arrêts du 14 mai 1998, Windpark Groothusen/Commission, C‑48/96 P, Rec. p. I‑2873, point 52, et du 7 septembre 2006, Espagne/Conseil, C‑310/04, Rec. p. I‑7285, point 69).
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64. Second, it follows from settled case-law that a prior administrative authorisation scheme cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings. Therefore, if a prior administrative authorisation scheme is to be justified even though it derogates from a fundamental freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as adequately to circumscribe the exercise of the national authorities’ discretion (see, to that effect, inter alia, Case C‑205/99 Analir and Others [2001] ECR I‑1271, paragraphs 37 and 38, and Müller-Fauré and van Riet , paragraphs 84 and 85).
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38 Therefore, if a prior administrative authorisation scheme is to be justified even though it derogates from a fundamental freedom, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily. Accordingly, the nature and the scope of the public service obligations to be imposed by means of a prior administrative authorisation scheme must be specified in advance to the undertakings concerned. Furthermore, all persons affected by a restrictive measure based on such a derogation must have a legal remedy available to them.
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41. The Court has also been guided by those principles in the interpretation of the rules of jurisdiction relating to those contracts which are laid down by the Brussels Convention. It has held that, in a situation in which, as in the main proceedings, the employee carries out his working activities in more that one Contracting State, it is necessary to take due account of the need to guarantee adequate protection to the employee as the weaker of the contracting parties (see, to that effect, Rutten , paragraph 22, and Case C‑437/00 Pugliese [2003] ECR I‑3573, paragraph 18).
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53. Nor does Article 4 of that directive contain any specific indications as regards the content of the measures of support for renewable energy whose adoption is thus encouraged, apart from the indications that such measures are to contribute to attaining the objectives set out in Articles 6 EC and 174(1) EC (see judgment in IBV & Cie , EU:C:2013:598, paragraph 65).
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65. Finally, as regards the content of cogeneration support schemes, Article 7(1) of Directive 2004/8 is limited to specifying that the Member States are to ensure that the support they grant is based on the useful heat demand and primary energy savings, in the light of opportunities available for reducing energy demand through other economically feasible or environmentally advantageous measures such as other energy efficiency measures. As for Article 4(1) of Directive 2001/77, it does not contain any specific indication as regards the measures of support for renewable energy whose adoption is encouraged, apart from the reference, noted in paragraph 59 above, to the contribution of such measures to attaining the objectives set out in Article 174 EC.
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46. Toutefois, hormis le fait que la République hellénique semble elle-même reconnaître la participation des employés et de l’État, en tant qu’employeur, au financement du régime litigieux, il ressort en tout état de cause de la jurisprudence de la Cour que les modalités de financement et de gestion d’un régime de pension tel que celui en cause en l’espèce ne constituent pas non plus un élément décisif pour apprécier si ledit régime relève de l’article 141 CE (arrêts précités Beune, point 38; Griesmar, point 37, et Niemi, point 43).
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116. In this regard, it should be observed at the outset that, in accordance with the third paragraph of Article 249 EC, a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed. In the present instance, Articles 9 and 10 of the Directive impose on the Member States obligations formulated in clear and unequivocal terms to achieve a certain result, under which undertakings or establishments which carry out waste disposal operations or waste recovery operations in those States must hold a permit. It follows that a Member State has complied with its obligations under those provisions only if, in addition to the correct transposition of the provisions into domestic law, the operators concerned have the permit required (see, by analogy, in relation to the prior authorisation required to operate incineration plants referred to in Article 2 of Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste incineration plants (OJ 1989 L 163, p. 32), Case C‑139/00 Commission v Spain [2002] ECR I-6407, paragraph 27).
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27 In accordance with the third paragraph of Article 189 of the EC Treaty (now the third paragraph of Article 249 EC), a directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed. As is clear from, inter alia, Case C-60/01 Commission v France [2002] ECR I-0000, paragraph 33), Directive 89/369 imposes on the Member States obligations, formulated in clear and unequivocal terms, in order to achieve a certain result, that their incineration plants meet detailed and precise requirements within the stated time-limits. Accordingly, a Member State will comply with its obligations under Directive 89/369 and thus achieve the result prescribed therein only if, in addition to the correct implementation of the provisions of that directive into domestic law, the incineration plants located in its territory have in actual fact been commissioned and operate in accordance with the requirements of the provisions of Directive 89/369. It follows that, contrary to the Spanish Government's assertion, the correct transposition in domestic law of the provisions of Directive 89/369 is not sufficient to comply with the obligations imposed by that directive.
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111. Secondly, it must be noted that, unlike, for example, investment aid, the purpose of this type of scheme is to support the operation of installations producing green electricity once they become active. In that regard, the quota obligation is designed in particular to guarantee green electricity producers a demand for the certificates they have been awarded and in that way to facilitate the sale of the green energy that they produce at a price higher than the market price for conventional energy.
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73 As regards the substance of the complaint, where the authorities awarding the contract do not take the lowest price as the sole criterion for awarding the contract but have regard to various criteria with a view to awarding the contract to the most economically advantageous tender, they are required to state these criteria in the contract notice or the contract documents. Consequently, a general reference to a provision of national legislation cannot satisfy the publicity requirement (Beentjes, paragraph 35).
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35 As regards the criterion of "the most acceptable offer", it should be noted that even if such a criterion were compatible with the directive in the circumstances set out above, it is clear from the wording of Article 29 ( 1 ) and ( 2 ) of the directive that where the authorities awarding the contract do not take the lowest price as the sole criterion for awarding the contract but have regard to various criteria with a view to awarding the contract to the most economically advantageous tender, they are required to state these criteria in the contract notice or the contract documents . Consequently, a general reference to a provision of national legislation cannot satisfy the publicity requirement .
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25 In Commission v Netherlands, cited above, paragraph 30, the Court held that the maintenance of the pluralism which the Netherlands broadcasting policy seeks to safeguard is intended to preserve the diversity of opinions, and hence freedom of expression, which is precisely what the European Convention on Human Rights is designed to protect.
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52 That principle of the primacy of Community law means that not only the lower courts but all the courts of the Member State are under a duty to give full effect to Community law (see, to that effect, Cases 48/71 Commission v Italy [1972] ECR 529, paragraph 7, and C-101/91 Commission v Italy [1993] ECR I-191, paragraph 24).
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7 IN THE PRESENT CASE THE EFFECT OF COMMUNITY LAW, DECLARED AS RES JUDICATA IN RESPECT OF THE ITALIAN REPUBLIC, IS A PROHIBITION HAVING THE FULL FORCE OF LAW ON THE COMPETENT NATIONAL AUTHORITIES AGAINST APPLYING A NATIONAL RULE RECOGNIZED AS INCOMPATIBLE WITH THE TREATY AND, IF THE CIRCUMSTANCES SO REQUIRE, AN OBLIGATION ON THEM TO TAKE ALL APPROPRIATE MEASURES TO ENABLE COMMUNITY LAW TO BE FULLY APPLIED .
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57
Admittedly, as the German Government argues in essence, the taxable value of the gift to a non-resident beneficiary, where he is partially subject to gift tax in Germany, is, in principle, less than that of a resident or non-resident beneficiary who is wholly subject to that tax in that Member State (see, by analogy, the judgment of 17 October 2013 in Welte, C‑181/12, EU:C:2013:662, paragraph 52).
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33. However, the Court has consistently held that legislation, such as that referred to in the main proceedings, which makes the holding of mammals subject to the prior inclusion of the species to which they belong in a positive list and which also applies to specimens of species which are legally held in other Member States is in compliance with Community law only if a number of conditions are satisfied (see, by analogy, inter alia, Case C‑344/90 Commission v France [1992] ECR I-4719, paragraphs 8 and 16, and Case C-24/00 Commission v France , paragraph 25).
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16 In the present case it should be noted that the abovementioned French decrees introduced for additives a system, comprising a ban, subject to the possibility of authorization, that applied equally to additives in foodstuffs from Member States where they were lawfully manufactured and marketed.
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166. The Court of First Instance in fact rightly ruled that, having regard to the wording of Articles 60 EC and 301 EC, especially to the expressions ‘as regards the third countries concerned’ and ‘with one or more third countries’ used there, those provisions concern the adoption of measures vis-à-vis third countries, since that concept may include the rulers of such a country and also individuals and entities associated with or controlled, directly or indirectly, by them.
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123. Moreover, according to settled case-law, the Commission enjoys a wide discretion in setting the amount of fines and is not bound by assessments made by it in the past (see Dansk Rørindustri and Others v Commission , paragraphs 209 to 213, and Case C-510/06 P Archer Daniels Midland v Commission [2009] ECR I-0000, paragraph 82). It follows that the appellant cannot invoke the Commission’s decision-making policy before the Community judicature.
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209. The Court has already held, in a judgment concerning internal measures adopted by the administration, that although those measures may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. Such measures therefore constitute a general act and the officials and other staff concerned may invoke their illegality in support of an action against the individual measures taken on the basis of the measures (see Case C-171/00 P Libéros v Commission [2002] ECR I-451, paragraph 35).
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52. As is clear from recitals 3 and 4 of its preamble, the aim of the Framework Decision is only that, within criminal proceedings as defined in Article 1(c) thereof, minimum standards should be drawn up for the protection of victims of crimes and victims should be afforded a high level of protection, particularly in respect of their access to justice.
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94. In paragraph 42 of Detiček , the Court defined the concept of urgency, as used in Article 20 of Regulation No 2201/2003, as relating both to the situation of the child and to the impossibility in practice of bringing the application concerning parental responsibility before the court with jurisdiction as to the substance.
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42. Since Article 20(1) of Regulation No 2201/2003 authorises a court which does not have jurisdiction as to the substance to take, exceptionally, a provisional measure concerning parental responsibility, it must be considered that the concept of urgency in that provision relates both to the situation of the child and to the impossibility in practice of bringing the application concerning parental responsibility before the court with jurisdiction as to the substance.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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27. According to the fifth recital in its preamble, the main purpose of Directive 89/105 is to ensure transparency of pricing, including the manner in which it operates in individual cases and the criteria on which it is based ( Pohl-Boskamp , paragraph 29).
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29. In that regard, it is sufficient to state that, even if possible detriment to intra-Community trade was taken into consideration during the drawing up of Directive 89/105, its main purpose, according to its fifth recital, is to ensure transparency of pricing, including the manner in which it operates in individual cases and the criteria on which it is based, and to provide public access to pricing arrangements for all those involved in the market in medicinal products in the Member States. A barrier to intra-Community trade does not constitute a requirement for the application of that directive.
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47. It should be borne in mind that Regulation No 1788/2003 comes under the objective of stabilising the markets, which is expressly laid down in Article 33(1)(c) EC (see, by analogy, Hierl , paragraph 10).
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19. In that regard, it is clear from the case-law that the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of its Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Cases C‑284/06 Burda [2008] ECR I‑4571, paragraph 37 and the case-law cited, and Case C‑266/09 Stichting Natuur en Milieu and Others [2010] ECR I‑0000, paragraph 27).
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37. It is clear from the case-law that the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 25; Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 27; and Case C‑466/03 Albert Reiss Beteiligungsgesellschaft [2007] ECR I‑5357, paragraph 29).
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119 It is not in dispute that the amendments made in 1995 to the 1989 Agreement added thereto an Annex III concerning the principles relating to CRSs, including those applying to CRSs offered for use or used in the territory of the Republic of Austria. By acting in that way, the Republic of Austria infringed the exclusive external competence of the Community arising from Regulation No 2299/89.
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51
So that the proprietor of an EU trade mark has that extended protection, it must be established, within the meaning of Article 9(1)(c) of that regulation that that mark has a ‘reputation in the [European Union]’. To that end, it is sufficient that it be established that the mark has such a reputation in a substantial part of the territory of the European Union, and that part may, in some circumstances, correspond to the territory of a single Member State. If that condition is satisfied, the EU trade mark at issue must be held to have a reputation in the whole of the European Union (judgments of 6 October 2009, PAGO International, C‑301/07, EU:C:2009:611, paragraphs 27, 29 and 30, and of 3 September 2015, Iron & Smith, C‑125/14, EU:C:2015:539, paragraphs 19 and 20).
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29. As the present case concerns a Community trade mark with a reputation throughout the territory of a Member State, namely Austria, the view may be taken, regard being had to the circumstances of the main proceedings, that the territorial requirement imposed by Article 9(1)(c) of the regulation is satisfied.
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48. For example, they may refuse to carry out a revision where the facts to be verified require physical verification and, following the release of the goods, the latter can no longer be presented to them.
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34. According to settled case-law, the choice of the legal basis for a European Union measure, including the measure adopted for the purpose of concluding an international agreement, must rest on objective factors amenable to judicial review, which include the aim and content of that measure. If examination of a European Union measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely, that required by the main or predominant purpose or component. By way of exception, if it is established that the measure pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the various corresponding legal bases. However, no dual legal basis is possible where the procedures required by each legal basis are incompatible with each other (see, inter alia, Case C‑130/10 Parliament v Council EU:C:2012:472, paragraphs 42 to 45 and the case-law cited).
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44. With regard to a measure that simultaneously pursues a number of objectives, or that has several components, which are inseparably linked without one’s being incidental to the other, the Court has held that, where various provisions of the Treaty are therefore applicable, such a measure will have to be founded, exceptionally, on the various corresponding legal bases (see, in particular, Parliament v Council , paragraph 36 and case-law cited).
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57. Article 15(3) of the Framework Directive states that NRAs are to take the utmost account of the Commission recommendation and the guidelines for the purpose of defining the relevant markets.
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29
Neither Article 138(1) of the VAT Directive nor the Court’s case-law, however, mentions — as one of the substantive conditions, listed exhaustively, for an intra-Community supply — the obligation for the purchaser to have a VAT identification number (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 59) nor, a fortiori, the obligation for the purchaser to be registered for the purpose of carrying out intra-Community transactions and to be registered in the VIES system.
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59. However, neither the wording of Article 138(1) of Directive 2006/112 nor the case-law cited in paragraph 31 above mentions – as one of the substantive conditions, listed exhaustively, for an intra-Community supply – the obligation to have a VAT identification number.
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28. It is clear from the order for reference that Catherine has both sickness insurance and sufficient resources, provided by her mother, for her not to become a burden on the social assistance system of the host Member State.
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55. That concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose ( Del Cerro Alonso , paragraph 58). Those factors may result, in particular, from the specific nature of the tasks for the performance of which fixed-term contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (see, as regards clause 4(1) of the framework agreement, Del Cerro Alonso , paragraphs 53 and 58; as regards the concept of ‘objective reasons’ in clause 5(1)(a) of the framework agreement, Adeneler and Others , paragraphs 69 and 70, and the order of 24 April 2009 in Case C‑519/08 Koukou , paragraph 45).
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70. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.
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18 The application of those detailed rules must not therefore be confused with a limitation on the effects of a judgment of the Court ruling on a request for interpretation of a provision of Community law. The consequence of such a limitation is to deprive litigants, who would normally be in a position, under their national procedural rules, to exercise the rights conferred on them by the Community provision concerned, of the right to rely on it in support of their claims.
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31 Moreover, it is first and foremost for the party seeking to establish the Community's liability to adduce conclusive proof as to the existence or extent of the damage he alleges and to establish the causal link between that damage and the conduct complained of on the part of the Community institutions (see, in particular, the judgment in Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraphs 22 and 23).
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23 ALTHOUGH THE COURT EXPRESSLY REQUESTED THE APPLICANT TO SUPPLEMENT THE PARTICULARS OF ITS CLAIM IN THIS RESPECT , THE LATTER MERELY PRODUCED OVERALL FIGURES THE INTERPRETATION OF WHICH IS DOUBTFUL AND IT FAILED TO PROVE ANY ACTUAL DAMAGE WHICH IT HAS SPECIFICALLY SUFFERED IN THE COURSE OF ITS BUSINESS OR A CAUSAL CONNEXION BETWEEN THIS DAMAGE AND THE MEASURES ADOPTED BY THE COMMISSION .
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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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15 Next, the Court stressed in the judgment in Case 82/72 Walder [1973] ECR 599, paragraphs 6 and 7, relating to the interpretation of Articles 5 and 6 of Regulation No 3 and Articles 6 and 7 of Regulation No 1408/71, that it is clear from those provisions that the replacement by the Community regulations of the provisions of social security conventions concluded between Member States is mandatory in nature and does not allow of exceptions, save for the cases expressly stipulated by the regulations, even where the social security conventions are more advantageous to the persons covered by them than the Community regulations.
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7 THE FACT THAT SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN MEMBER STATES ARE MORE ADVANTAGEOUS TO PERSONS COVERED BY REGULATION NO 3 THAN THE REGULATION ITSELF IS THEREFORE NOT SUFFICIENT TO JUSTIFY AN EXCEPTION TO THIS PRINCIPLE UNLESS SUCH CONVENTIONS ARE EXPRESSLY PRESERVED BY THE REGULATION .
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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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43. Si la circonstance, soulevée par la République hellénique, que le régime de pension litigieux est fixé directement par la loi donne sans doute une indication selon laquelle les prestations servies par ce régime sont des prestations de sécurité sociale (voir, notamment, arrêts du 25 mai 1971, Defrenne, 80/70, Rec. p. 445, points 7 et 8, ainsi que du 6 octobre 1993, Ten Oever, C‑109/91, Rec. p. I‑4879, point 9), elle ne suffit pas en soi à exclure un tel régime du champ d’application de l’article 141 CE (voir, notamment, arrêts Beune, précité, point 26, et du 12 septembre 2002, Niemi, C‑351/00, Rec. p. I‑7007, point 41).
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9 ACCORDINGLY, THE PART DUE FROM THE EMPLOYERS IN THE FINANCING OF SUCH SCHEMES DOES NOT CONSTITUTE A DIRECT OR INDIRECT PAYMENT TO THE WORKER .
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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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41 Thus, important considerations of legal certainty, comparable with those arising where certain regulations are annulled, justify the Court in exercising the power conferred on it by the second paragraph of Article 174 of the Treaty when it annuls a regulation and in stating which of the effects of the decision annulled must be preserved (with regard to a directive, see, for example, Case C-21/94 Parliament v Council [1995] ECR I-1827, paragraph 31).
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31 As the Advocate General observed in paragraphs 64 and 65 of his Opinion, the need to avoid discontinuity in the programme for the harmonization of transport taxation and important considerations of legal certainty, comparable with those arising where certain regulations are annulled, justify the Court in exercising the power expressly conferred on it by the second paragraph of Article 174 of the EC Treaty when it annuls a regulation and in stating which of the effects of the contested directive must be preserved (see the judgment in Case C-295/92 Parliament v Council [1992] ECR I-4193, paragraph 26).
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Cela étant, la Commission n’est nullement tenue de se fonder exclusivement sur ladite présomption. En effet, rien n’empêche cette institution d’établir l’exercice effectif, par une société mère, d’une influence déterminante sur sa filiale par d’autres éléments de preuve ou par une combinaison de tels éléments avec ladite présomption (voir arrêts du 19 juillet 2012, Alliance One International et Standard Commercial Tobacco/Commission, C‑628/10 P et C‑14/11 P, EU:C:2012:479, point 49, ainsi que du 10 avril 2014, Areva e.a./Commission, C‑247/11 P et C‑253/11 P, EU:C:2014:257, point 36).
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24. According to settled case-law, the Member States remain competent to define the conditions for granting social security benefits, even if they make them more strict, provided that the conditions adopted do not give rise to overt or disguised discrimination between European Union workers (Case C‑12/93 Drake [1994] ECR I‑4337, paragraph 27; Joined Cases C‑88/95, C‑102/95 and C‑103/95 Martínez Losada and Others [1997] ECR I‑869, paragraph 43; and Case C‑306/03 Salgado Alonso [2005] ECR I‑705, paragraph 27).
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27 It follows that Community law does not preclude the national legislature from altering the conditions for granting benefits for incapacity for work, even if it makes them more strict, provided that the new requirements do not give rise to overt or disguised discrimination between Community workers.
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45 As the Court held in Rompelman, paragraph 23, and in Case C-110/94 INZO v Belgian State [1996] ECR I-857, paragraph 16, the principle that VAT should be neutral as regards the tax burden on a business requires that the first investment expenditure incurred for the purposes of and with the view to commencing a business must be regarded as an economic activity and it would be contrary to that principle if such an activity did not commence until the business was actually exploited, that is to say until it began to yield taxable income. Any other interpretation of Article 4 of the directive would burden the trader with the cost of VAT in the course of his economic activity without allowing him to deduct it in accordance with Article 17, and would create an arbitrary distinction between investment expenditure incurred before actual exploitation of a business and expenditure incurred during exploitation.
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46. In that regard, it must be recalled that the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to air carriers’ rights to seek compensation from any person who caused the delay, including third parties, as Article 13 of the regulation provides. Such compensation may accordingly reduce or even remove the financial burden borne by carriers in consequence of those obligations (judgment in Sturgeon and Others , C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 68 and the case-law cited).
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68. Moreover, the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to air carriers’ rights to seek compensation from any person who caused the delay, including third parties, as Article 13 of the regulation provides. Such compensation may accordingly reduce or even remove the financial burden borne by carriers in consequence of those obligations. Nor does it appear unreasonable for those obligations initially to be borne, subject to the abovementioned right to compensation, by the air carriers with which the passengers concerned have a contract of carriage that entitles them to a flight that should be neither cancelled nor delayed ( IATA and ELFAA , paragraph 90).
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28 A part-time employee whose contractual working hours are 18 receives, if he works 19 hours, the same overall pay as a full-time employee who works 19 hours.
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9 As the Court has emphasized in its decisions, it is necessary in interpreting a provision of Community law to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (judgment in Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12, and in Case 337/82 St Nikolaus Brennerei v Hauptzollamt Krefeld [1984] ECR 1051, paragraph 10).
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12 IF THE WORDING OF THE CONTESTED REGULATIONS , READ TOGETHER WITH THE ANNEX TO REGULATION NO 1400/78 ONLY , IS REFERRED TO , THEN , AS THE FINANZGERICHT POINTS OUT , THE EXPORT REFUNDS ON MANNITOL AND SORBITOL SHOULD IN ANY EVENT BE GRANTED FOR THE PERIOD IN QUESTION AT THE REDUCED RATES SET OUT IN TABLE I OF THE ANNEX TO THE CONTESTED REGULATIONS . HOWEVER , AS THE COURT HAS EMPHASIZED IN PREVIOUS DECISIONS , IN INTERPRETING A PROVISION OF COMMUNITY LAW IT IS NECESSARY TO CONSIDER NOT ONLY ITS WORDING BUT ALSO THE CONTEXT IN WHICH IT OCCURS AND THE OBJECTS OF THE RULES OF WHICH IT IS PART .
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34 The acetyl content of starch is an indicator of the extent to which substitution has taken place: the higher the acetyl content, the more extensive the modification of the starch. Starch with a very low acetyl content may therefore be close to native starch.
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31 Finally, as regards specifically the last part of the question, the Court has consistently held that a limitation of the effects in time of an interpretative preliminary ruling can only be in the actual judgment ruling upon the interpretation sought (see, in particular, the judgment of 16 July 1992 in Case C-163/80 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625, paragraph 30). Consequently, if the Court had considered it necessary to impose a limit in time on the rule that the right to be a member of an occupational pension scheme is covered by Article 119, it would have done so in the Bilka judgment.
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21. In a situation such as that in the main proceedings, there is no such direct link between general corporation tax, on the one hand, and a tax credit for part of the research expenditure incurred by a company, on the other.
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43. Moreover, if the Member States wish to exclude once and for all any possibility for producers or importers to absorb, even temporarily, the impact of taxes on the retail selling price of manufactured tobacco products by selling them at a loss, it is inter alia open to them, while allowing those producers and importers to make effective use of the competitive advantage resulting from any lower cost prices, to prohibit the sale of manufactured tobacco products at a price below the sum of the cost price and all taxes (see Case C-197/08 Commission v France , paragraph 53, and Commission v Ireland , paragraph 55).
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53. Moreover, if the Member States wish to exclude once and for all any possibility for producers or importers to absorb, even temporarily, the impact of taxes on the retail selling price of manufactured tobacco products by selling them at a loss, it is inter alia open to them, while allowing those producers and importers to make effective use of the competitive advantage resulting from any lower cost prices, to prohibit the sale of manufactured tobacco products at a price below the sum of the cost price and all taxes (see Commission v Austria , paragraph 43, and Commission v Ireland , paragraph 55).
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9 It follows from that observation that the Council has a general power in relation to tariff matters, which is based both on Article 28 and on Article 113 of the Treaty, inasmuch as it has that power irrespective of whether Common Customs Tariff duties are amended autonomously ( Article 28 ) or under tariff agreements or other measures of common commercial policy ( Article 113 ).
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73. It is true that Member States may, in certain circumstances, treat the concealment of the existence of an intra-Community transaction as an attempt to evade VAT and impose, in such a case, fines or penalty payments prescribed by their domestic law, provided that they are proportionate to the gravity of the abuse (see, to that effect, Collée , paragraph 40).
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40. Finally, it should be noted that Community law does not prevent Member States – in certain circumstances – from treating the concealment of the existence of an intra-Community transaction as an attempt to evade VAT and from imposing, in such a case, fines or penalty payments prescribed by their domestic law (see, to that effect, Schmeink & Cofreth and Strobel , paragraph 62). However, as the Commission rightly submits, such penalties should always be proportionate to the gravity of the abuse.
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23 ON THE OTHER HAND , AS IS EXPRESSLY STATED IN THE REPORT ON THE CONVENTION ( OFFICIAL JOURNAL 1979 , C 59 , P . 1 , AT P . 36 ), ' ' OTHER ACTIONS , INCLUDING THOSE FOR INFRINGEMENT OF PATENTS , ARE GOVERNED BY THE GENERAL RULES OF THE CONVENTION ' ' . THAT STATEMENT CONFIRMS THE RESTRICTIVE NATURE OF THE PROVISION CONTAINED IN ARTICLE 16 ( 4 ).
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39 In that regard, it is sufficient to note that Article 39(1) of the Agreement merely lays down the principle that Algerian migrant workers and any members of their families living with them are to be free from any discrimination based on nationality in relation to nationals of the Member States in which they are employed. Since the persons covered by that provision of the Agreement are not the same as those covered by Article 2 of Regulation No 1408/71, the case-law distinguishing between the derived rights and the personal rights of members of migrant workers' families in the context of Regulation No 1408/71 cannot be applied in the context of the Agreement, as is clear from the Kziber judgment.
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25 La notion de sécurité sociale figurant à l' article 41, paragraphe 1, de l' accord doit être comprise par analogie avec la notion identique figurant au règlement ( CEE ) n 1408/71 du Conseil, du 14 juin 1971, relatif à l' application des régimes de sécurité sociale aux travailleurs salariés et à leur famille qui se déplacent à l' intérieur de la Communauté ( version codifiée, JO 1980, C 138, p . 1 ). Or, l' article 4 de ce règlement, relatif au champ d' application matériel, énumère, en son paragraphe 1, parmi les branches de la sécurité sociale, les prestations de chômage dont les allocations d' attente, en cause dans l' affaire au principal, ne constituent qu' une forme particulière .
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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. Cela implique, plus particulièrement, que les critères d’attribution doivent être formulés, dans le cahier des charges ou dans l’avis de marché, de manière à permettre à tous les soumissionnaires raisonnablement informés et normalement diligents de les interpréter de la même manière (arrêts SIAC Construction, précité, point 42, ainsi que du 4 décembre 2003, EVN et Wienstrom, C‑448/01, Rec. p. I‑14527, point 57) et que, lors d’une évaluation des offres, ces critères doivent être appliqués de manière objective et uniforme à tous les soumissionnaires (arrêt SIAC Construction, précité, point 44).
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44 Finally, when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers. Recourse by an adjudicating authority to the opinion of an expert for the evaluation of a factual matter that will be known precisely only in the future is in principle capable of guaranteeing compliance with that condition.
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28. According to the case-law of the Court, the freedom to conduct a business is not absolute. It may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest (see, to that effect, Sky Österreich , paragraphs 45 and 46 and the case-law cited).
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40
As regards, in particular, the conditions relating to obtaining the full deduction, the Court has held that a threshold of 10% indeed serves to exclude from the scope of the fiscal advantage shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking, but does not in itself make the deduction applicable only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities (judgment of 11 September 2014, Kronos International, C‑47/12, EU:C:2014:2200, paragraph 34 and 35). The Court considered that a holding of such a size does not necessarily imply that the owner of the holding exerts a definite influence over the decisions of the company in which it is a shareholder (see, to that effect, judgments of 3 October 2013, Itelcar, C‑282/12, EU:C:2013:629, paragraph 22, and of 11 September 2014, Kronos International, C‑47/12, EU:C:2014:2200, paragraph 35).
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35. However, contrary to the German Government’s submissions, such a threshold does not in itself make the exemption applicable only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities. The Court has already held that a holding of such a size does not necessarily mean that the holder exerts a definite influence on the decisions of the company of which it is a shareholder (see, to this effect, judgment in ITELCAR and Fazenda Pública , C‑282/12, EU:C:2013:629, paragraph 22).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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31
In the second place, concerning a situation such as that at issue in the main proceedings, it must be recalled that Article 7(2) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that, on termination of the employment relationship, no allowance in lieu of paid annual leave not taken is to be paid to a worker who has been on sick leave for the whole or part of the leave year and/or of a carry-over period, which was the reason why he could not exercise his right to paid annual leave (judgments in Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 62, and Neidel, C‑337/10, EU:C:2012:263, paragraph 30).
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30. Consequently, the Court has held that Article 7(2) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that, on termination of the employment relationship, no allowance in lieu of paid annual leave not taken is to be paid to a worker who has been on sick leave for the whole or part of the leave year and/or of a carry‑over period, which was the reason why he could not exercise his right to paid annual leave ( Schultz‑Hoff and Others , paragraph 62).
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13. Il ressort de la jurisprudence que l’obligation d’établir des plans de gestion des déchets constitue une obligation de résultat à laquelle il ne saurait être satisfait par des mesures préparant ou visant à l’élaboration de plans ou fixant un cadre réglementaire de nature à réaliser cet objectif (arrêts du 2 mai 2002, Commission/France, C‑292/99, Rec. p. I‑4097, point 39; du 14 avril 2005, Commission/Grèce, C‑163/03, non publié au Recueil, point 74, et du 14 juin 2007, Commission/Italie, précité, point 27).
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29. Secondly, by application of the principle that a pensioner cannot be required, because he resides in the territory of a Member State, to pay compulsory insurance contributions to cover benefits payable by an institution of another Member State (Case C‑140/88 Noij [1991] ECR I‑387, paragraph 14), the Republic of Finland could not claim payment from Mr Rundgren of contributions such as those prescribed by Finnish legislation, since he was entitled to benefits having a similar purpose, for which the Kingdom of Sweden assumed responsibility as the Member State competent in his regard in respect of pensions ( Rundgren , paragraph 56).
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14 It follows from the foregoing that the rules laid down by the aforesaid Article 33 concerning sickness or maternity benefits constitute the application of a more general principle according to which a pensioner cannot be required, because he resides in the territory of a Member State, to pay compulsory insurance contributions to cover benefits payable by an institution of another Member State.
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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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7. 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 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 24 septembre 2009, Commission/Autriche, C‑477/08, point 8).
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24. 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 that Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraph 23, and Case C-209/02 Commission v Austria [2004] ECR I-0000, paragraph 16). Even when the default has been remedied after the time-limit prescribed by that opinion, pursuit of the action still has an object. That object may consist in particular in establishing the basis of the liability that a Member State could incur towards those who acquire rights as a result of its default (see, inter alia, Case 154/85 Commission v Italy [1987] ECR 2717, paragraph 6, and Case C-299/01 Commission v Luxembourg [2002] ECR I-5899, paragraph 11).
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30 For these reasons, the mere fact that a male candidate and a female candidate are equally qualified does not mean that they have the same chances.
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19. First, the Court has already held that the intervention of opticians was likely to limit certain health risks and thus ensures the protection of public health (see, to that effect, Case C-108/09 Ker-Optika [2010] ECR I-2213, paragraph 64).
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64. While not entirely eliminating the risks incurred by users of lenses, the establishment of a link to a qualified optician and the services provided by such an optician are likely to reduce those risks. Accordingly, by reserving the supply of contact lenses to the opticians’ shops which offer the services of such an optician, the legislation at issue in the main proceedings is appropriate for securing the attainment of the objective of ensuring protection of the health of those users.
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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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30
As a preliminary point, it should be noted that, in the context of the procedure established 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. With this in mind, the Court may have to reformulate the questions referred to it (judgment of 17 December 2015 in Viamar, C‑402/14, EU:C:2015:830, paragraph 29 and the case-law cited).
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29. As a preliminary point, it should be noted that, in the context of the procedure established 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 (judgment in Brasserie Bouquet , C‑285/14, EU:C:2015:353, paragraph 15 and the case-law cited).
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34 In criminal proceedings such as those in the main action, the regulations applied to the accused are those which, on the one hand, prohibit and penalise driving while under the influence of alcohol and, on the other, require a driver to exhale his breath into an apparatus designed to measure the alcohol content, the result of that test constituting evidence in criminal proceedings. Such regulations differ from those which, not having been notified to the Commission in accordance with the Directive, are unenforceable against individuals.
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13. The Court has repeatedly ruled that that requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 257; Commission v Council , paragraph 46; Germany v Commission , paragraph 34; and France v Parliament and Council , paragraph 13).
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257 However, it does not appear that annulment limited to the section of the operative part of the contested decision which relates to the conditions and obligations set out in point 63 thereof is possible without the substance of the decision being altered.
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34
It is also settled case-law that the terms used to specify those exemptions 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 (see, inter alia, the judgment of 28 July 2011, Nordea Pankki Suomi, C‑350/10, EU:C:2011:532, paragraph 23, and 22 October 2015, Hedqvist, C‑264/14, EU:C:2015:718, paragraph 34 and the case-law cited).
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51. However, suffice it to state that, in circumstances such as those of the main proceedings, the mother is not, and has never been, the spouse of the national of another Member State, and a mere cohabiting partner cannot be considered to be a ‘spouse’ for the purposes of Article 10(1)(a) of Regulation No 1612/68 (see, to that effect, Case 59/85 Reed [1986] ECR 1283, paragraph 16). Therefore, the daughter cannot be regarded as the child of the spouse of a migrant worker or former migrant worker.
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16 THE ANSWER TO THE THIRD QUESTION MUST THEREFORE BE THAT ARTICLE 10 ( 1 ) OF REGULATION NO 1612/68 CANNOT BE INTERPRETED AS MEANING THAT THE COMPANION , IN A STABLE RELATIONSHIP , OF A WORKER WHO IS A NATIONAL OF A MEMBER STATE AND IS EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE MUST IN CERTAIN CIRCUMSTANCES BE TREATED AS HIS ' SPOUSE ' FOR THE PURPOSES OF THAT PROVISION .
THE FIRST AND SECOND QUESTIONS
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40 It follows that the action is admissible inasmuch as it concerns obligations arising under the amended directive which were already applicable under Directive 75/442.
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35
The point should also be made that the first subparagraph of Article 168(1) TFEU provides that a high level of human health protection is to be ensured in the definition and implementation of all EU policies and activities, and that Article 114(3) TFEU explicitly requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed (judgments in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 62; Arnold André, C‑434/02, EU:C:2004:800, paragraph 33; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 32; and Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 40).
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32. It should also be noted that the first subparagraph of Article 152(1) EC provides that a high level of protection of human health is to be ensured in the definition and implementation of all Community policies and activities, and that Article 95(3) EC expressly requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62).
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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. According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the 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 question referred to it (see, inter alia, Case C-286/05 Haug [2006] ECR I-4121, paragraph 17; Case C-420/06 Jager [2008] ECR I-1315, paragraph 46; and Case C-157/10 Banco Bilbao Vizcaya Argentaria [2011] ECR I-13023, paragraph 18).
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18. In that regard, the Court notes that it is settled case‑law 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 question referred to it (see, inter alia, Case C‑286/05 Haug [2006] ECR I‑4121, paragraph 17, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 46).
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44. Il en est de même de l’argument de la République hellénique selon lequel le caractère général et obligatoire du régime de pension litigieux ne présenterait pas les caractéristiques d’un régime professionnel ou complémentaire. En effet, la circonstance qu’un régime particulier de pension, tel que celui prévu par le code, s’insère dans un cadre législatif général et harmonisé de régimes de pension ne suffit pas à exclure les prestations de pension fournies en vertu d’un tel régime du champ d’application de l’article 141 CE (voir, en ce sens, arrêt Niemi, précité, point 42). En outre, contrairement à ce que prétend cet État membre, l’applicabilité de cette disposition aux prestations de pension n’est nullement subordonnée à la condition qu’une pension soit une pension complémentaire par rapport à une prestation servie par un régime légal de sécurité sociale (arrêts précités Beune, point 37; Griesmar, point 37, et Niemi, point 42).
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32. In that regard, the Court has already held that it is apparent from the aim of the First, Second and Third Directives, and from their wording, that they do not seek to harmonise the rules of the Member States governing civil liability and that, as EU law stands at present, the Member States are free to determine the rules of civil liability applicable to road accidents ( Candolin and Others , paragraph 24, and Farrell , paragraph 33).
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24. As regards the refusal or limitation of the right to compensation paid by the compulsory motor vehicle insurance on account of the fact that the passenger who is a victim of an accident contributed to the injury, it is clear from the aim of the first, second and third directives, and from their wording, that they do not seek to harmonise the rules of the Member States governing civil liability and that, as Community law stands at present, the Member States are free to determine the rules of civil liability applicable to road accidents (Case C-348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I-6711, paragraphs 23 and 29).
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Il convient, en premier lieu, de rappeler que dans le cadre d’une procédure en manquement en vertu de l’article 258 TFUE, il incombe à la Commission d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, en ce sens, arrêts du 4 mars 2010, Commission/Italie, C‑297/08, EU:C:2010:115, point 101 et jurisprudence citée, ainsi que du 11 décembre 2014, Commission/Grèce, C‑677/13, non publié, EU:C:2014:2433, point 57 et jurisprudence citée).
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25 The effect of such a requirement is to cause the exercise of the free movement of capital to be subject to the discretion of the administrative authorities and thus be such as to render that freedom illusory (see Bordessa, paragraph 25, and Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 34).
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25 A requirement of that nature would cause the exercise of the free movement of capital to be subject to the discretion of the administrative authorities and thus be such as to render that freedom illusory (see Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 34). It might have the effect of impeding capital movements carried out in accordance with Community law, contrary to the second paragraph of Article 4 of the Directive.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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64. However, where an application for remission of import duties has been submitted to the Commission by a Member State for the purposes of Article 239 of the Customs Code and the Commission has already adopted a decision containing assessments of fact and law in a particular case concerning import operations, such assessments bind all the authorities of the Member State to which it was addressed, in accordance with Article 249 EC, including the courts which have to assess the same case under Article 220 of the Customs Code (see, to that effect, Case C‑413/96 Sportgoods [1998] ECR I-5285, paragraph 41).
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41 Here, it is sufficient to note, first, that the Commission, as it points out, did not express a view in its decision of 18 July 1994 as to the existence or otherwise of a legal basis for effecting post-clearance recovery of the customs duties concerned under the regulation in issue. The decision does not contain any legal or factual indication in this regard such as to bind all the authorities, including the courts, of the State to which it was addressed.
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49. The Court found those factors to be important for the purposes of deciding whether the vendor can be obliged to account for the VAT after the event (see, to that effect, Teleos and Others , paragraph 66).
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59. It is certainly true that, according to settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual, so that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties (see, to that effect, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraphs 108 and 109).
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109. It follows that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties.
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48. The pecuniary nature of the contract means that the contracting authority which has concluded a public works contract receives a service pursuant to that contract in return for consideration. That service consists in the realisation of works from which the contracting authority intends to benefit (see Case C-399/98 Ordine degli Architetti and Others [2001] ECR I‑5409, paragraph 77, and Case C-220/05 Auroux and Others [2007] ECR I‑385, paragraph 45).
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36 As a subsidiary argument, it has maintained that, by virtue of the case-law of the Court, in order to qualify for the derogation provided for in Article 90(2), it is not sufficient for a Member State to have entrusted to an undertaking the operation of a service of general economic interest but it is also necessary for the application of the rules of the Treaty to obstruct the performance of the particular tasks assigned to the undertaking and for the interests of the Community not to be affected (Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889, paragraph 26). The Commission adds that it is clear from the judgments in Case C-320/91 Corbeau [1993] ECR I-2533, paragraphs 14 and 16, and Case C-393/92 Almelo, cited above, paragraph 49, that, for restrictions on competition involving the granting of exclusive rights to undertakings entrusted with tasks of general economic interest to be justified under Article 90(2) of the Treaty, they must be necessary to ensure performance of the specific tasks assigned to those undertakings and in particular to enable them to operate under economically acceptable conditions.
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26 For the purpose of answering that question it should be borne in mind that in order that the derogation to the application of the rules of the Treaty set out in Article 90(2) thereof may take effect, it is not sufficient for the undertaking in question merely to have been entrusted by the public authorities with the operation of a service of general economic interest, but it must be shown in addition that the application of the rules of the Treaty obstructs the performance of the particular tasks assigned to the undertaking and that the interests of the Community are not affected (see the judgments in Case 311/84 CBEM v Compagnie Luxembourgeoise [1985] ECR 3261, paragraph 17, and in Case C-41/90 Hoefner, cited above, paragraph 24).
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39. In that regard, the Court has held that the intention of the Member States was to make provision for the seat of the Parliament, in Strasbourg, to be the principal place where it meets in ordinary plenary sitting, and to that end to specify the mandatory number of part-sessions which must be held there, and for the Parliament to exercise its budgetary powers in plenary sitting during one of the ordinary plenary part-sessions held at the seat of the institution (see the judgment in France v Parliament , paragraphs 25 and 28).
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45. As a preliminary point, it should be noted that, since the scale extends to the whole of the territory of a Member State, it may affect trade between Member States within the meaning of Articles 81(1) EC and 82 EC (see, to that effect, Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29; Case C-179/90 Merci convenzionali porto di Genova [1991] ECR I-5889, paragraphs 14 and 15; and Case C-35/99 Arduino [2002] ECR I-1529, paragraph 33).
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14 In the second place, as to the existence of exclusive rights, it should be stated first that with regard to the interpretation of Article 86 of the Treaty the Court has consistently held that an undertaking having a statutory monopoly over a substantial part of the common market may be regarded as having a dominant position within the meaning of Article 86 of the Treaty (see the judgments in Case C-41/90 Hoefner and Elser v Macrotron [1991] ECR I-1979, paragraph 28; Case C-260/89 ERT v DEP [1991] ECR I-2925, paragraph 31).
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52 The provision at issue in the main proceedings forms part of a restricted concept of equality of opportunity. It is not places in employment which are reserved for women but places in training with a view to obtaining qualifications with the prospect of subsequent access to trained occupations in the public service.
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46. It is thus clear from case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the general interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49, and Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55). Likewise, as regards the decisions which Directive 90/435 leaves in the hands of the Member States, the Court has pointed out that these may be exercised only in compliance with the fundamental provisions of the Treaty, in particular those relating to freedom of establishment ( Keller Holding , paragraph 45).
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29. It therefore needs to be examined whether, in accordance with Article 73d(1)(a) of the Treaty, the difference in treatment of a person fully taxable in Austria, according to whether such person receives revenue from capital from companies established in that Member State or revenue from capital from companies established in other Member States, relates to situations which are not objectively comparable.
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42. À cet égard, il y a lieu de souligner que les démarches législatives destinées à garantir l’exécution, par les juridictions nationales, d’une décision de la Commission obligeant un État membre à récupérer une aide illégale, qui sont, comme en l’espèce, prises tardivement et qui s’avèrent inefficaces, ne satisfont pas aux exigences découlant de la jurisprudence visée aux points 24 à 26 du présent arrêt (voir arrêt du 14 juillet 2011, Commission/Italie, C‑303/09, point 41).
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18. As is apparent from its wording — according to which, during the period at issue, Member States are to allocate at least 90% of the emission allowances free of charge — Article 10 of Directive 2003/87 precludes charges imposed in respect of the allocation of allowances themselves (judgment in Iberdrola and Others , C‑566/11, C‑567/11, C‑580/11, C‑591/11, C‑620/11 and C‑640/11, EU:C:2013:660, paragraph 27).
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27. As is apparent from its wording – according to which, during the period at issue, Member States are to allocate at least 95% of the emission allowances free of charge – Article 10 of Directive 2003/87 precludes charges imposed in respect of the allocation of allowances.
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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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46
Thus, given the disparities between the Member States’ legislation in this field, a worker’s decision to rely on his freedom of movement under, in particular, Article 45 TFEU, can, depending on the circumstances, be more or less advantageous for such a worker from a tax point of view (see, by analogy, concerning the principle of non-discrimination, judgments of 15 July 2004, Lindfors, C‑365/02, EU:C:2004:449, paragraph 34, and of 12 July 2005, Schempp, C‑403/03, EU:C:2005:446, paragraph 45; of freedom of establishment, judgments of 6 December 2007, Columbus Container Services, C‑298/05, EU:C:2007:754, paragraph 51, and of 28 February 2008, Deutsche Shell, C‑293/06, EU:C:2008:129, paragraph 43; as well as free movement of capital, judgment of 7 November 2013, K, C‑322/11, EU:C:2013:716, paragraph 80).
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34. It has already been held that the EC Treaty offers no guarantee to a citizen of the Union that transferring his activities to a Member State other than that in which he previously resided will be neutral as regards taxation. Given the disparities in the tax legislation of the Member States, such a transfer may be to the citizen’s advantage in terms of indirect taxation or not, according to circumstance. It follows that, in principle, any disadvantage, by comparison with the situation in which that citizen carried on activities prior to that transfer, is not contrary to Article 18 EC, provided that the legislation concerned does not place that citizen at a disadvantage as compared with those already subject to such a tax (see Weigel , paragraph 55).
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16. It is thus apparent from that provision that the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (see, to that effect, Case C‑607/11 ITV Broadcasting and Others [2013] ECR, paragraphs 21 and 31).
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37
In that regard, it must be borne in mind that many daily actions, both in the public and in the private domains, require a person to provide evidence of his or her own identity and also, in the case of a family, evidence of the nature of the links between different family members (judgments of 12 May 2011, Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 73, and of 2 June 2016, Bogendorff von Wolffersdorff, C‑438/14, EU:C:2016:401, paragraph 43).
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43
In that regard, it must be borne in mind that many daily actions, both in the public and in the private domains, require a person to provide evidence of his or her own identity and also, in the case of a family, evidence of the nature of the links between different family members (judgment of 12 May 2011 in Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 73).
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67. Moreover, it is clear from the fifth recital in the preamble to Directive 93/104 that " the improvement of workers ' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations."
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33
It should also be recalled that the Court has held that the purpose of the reference in Article 11(2) of Regulation No 44/2001 is to add injured parties to the list of plaintiffs contained in Article 9(1)(b) of that regulation, without restricting the category of persons having suffered damage to those suffering it directly (judgments of 13 December 2007, FBTO Schadeverzekeringen, C‑463/06, EU:C:2007:792, paragraph 26, and of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraph 27).
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27. In the present case, it should be borne in mind, first, that, like the German version, other language versions of Article 11(2) of Regulation No 44/2001 use a term equivalent to ‘the injured party’ (in French, ‘la personne lésée’). This is true of the following language versions: Spanish (‘persona perjudicada’), Czech (‘poškozený’), Danish (‘skadelidte’), Estonian (‘kahju kannatanud pool’), Italian (‘persona lesa’), Polish (‘poszkodowany’), Slovak (‘poškodený’) and Swedish (‘skadelidande’). Second, in paragraph 26 of its judgment in FBTO Schadeverzekeringen , the Court ruled that the purpose of the reference in Article 11(2) of Regulation No 44/2001 is to add injured parties to the list of plaintiffs contained in Article 9(1)(b) of that regulation, without restricting the category of persons having suffered damage to those suffering it directly.
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61. In this instance, it should be noted in particular that the contested decision enabled provisional application of the Accession Agreement and the Ancillary Agreement by the European Union. Annulment of that decision with immediate effect would be liable to give rise to serious consequences for the relations of the European Union with the third States concerned and for the businesses which operate on the air transport market and have been able to benefit from the provisional application of those agreements.
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29. As regards the derogations set out in the first subparagraph of Article 3(1) of Regulation No 857/84, the Court has acknowledged that the Member States have a discretion to decide whether or not special reference quantities should be allocated to the producers mentioned in that provision (Case C‑63/93 Duff and Others [1996] ECR I‑569, paragraph 11) and to determine, if necessary, the size of those allocations in order to take account of a development plan in the course of implementation (Joined Cases 196/88 to 198/88 Cornée and Others [1989] ECR 2309, paragraph 13) or a development plan implemented after 1 January 1981 (Case C‑16/89 Spronk [1990] ECR I‑3185, paragraphs 11 and 12).
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13 From the wording of the aforementioned provision it is clear that it grants to the Member States a discretionary power to decide whether special reference quantities should be allocated to the producers mentioned in that provision and, if so, to determine their size .
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113. In order to be permitted to bring an action on behalf of such an organisation, it is necessary to show that the organisation concerned does indeed wish to bring the action and that the lawyers who claim to represent it have in fact been instructed for that purpose.
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24. It should be observed 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, and Harbs , paragraph 28). Moreover, it follows from the need for uniform application of Community law and the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, inter alia, the judgment of 17 March 2005 in Case 327/82 Ekro [1984] ECR 107, paragraph 11, and Case C-170/03 Feron [2005] ECR I-0000, paragraph 26).
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11 THE NEED FOR A UNIFORM APPLICATION OF COMMUNITY LAW AND THE PRINCIPLE OF EQUALITY REQUIRE THAT THE TERMS OF A PROVISION OF COMMUNITY LAW WHICH MAKES NO EXPRESS REFERENCE TO THE LAW OF THE MEMBER STATES FOR THE PURPOSE OF DETERMINING ITS MEANING AND SCOPE MUST NORMALLY BE GIVEN AN INDEPENDENT AND UNIFORM INTERPRETATION THROUGHOUT THE COMMUNITY ; THAT INTERPRETATION MUST TAKE INTO ACCOUNT THE CONTEXT OF THE PROVISION AND THE PURPOSE OF THE RELEVANT REGULATIONS .
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31. As an exception to the prohibition on imposing specific obligations on operators individually, the obligations which may be imposed under the Universal Service Directive on undertakings designated in accordance with Article 8(1) thereof to provide universal service are to be interpreted strictly.
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19 It is clear from case-law that that conclusion is based, amongst other things, on the finding that the mere acquisition and holding of shares in a company is not to be regarded as an economic activity, within the meaning of the Sixth Directive, conferring on the holder the status of a taxable person. The mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis because any dividend yielded by that holding is merely the result of ownership of the property (see the judgments in Case C-333/91 Sofitam [1993] ECR I-3513, paragraph 12, and in Case C-80/95 Harnas & Helm [1997] ECR I-745, paragraph 15).
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15 However, the Court has also specified that the mere acquisition and holding of shares in a company is not to be regarded as an economic activity, within the meaning of the Sixth Directive, conferring on the holder the status of a taxable person (Case C-60/90 Polysar Investments Netherlands v Inspecteur der Invoerrechten en Accijnzen [1991] ECR I-3111, paragraph 13). The mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis because any dividend yielded by that holding is merely the result of ownership of the property (see also, to the same effect, Case C-333/91 Sofitam v Ministre Chargé du Budget [1993] ECR I-3513, paragraph 12).
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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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139
[As rectified by order of 19 September 2017] In that case, the Commission is not only required to analyse, first, the extent of the undertaking’s dominant position on the relevant market and, secondly, the share of the market covered by the challenged practice, as well as the conditions and arrangements for granting the rebates in question, their duration and their amount; it is also required to assess the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market (see, by analogy, judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 29).
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29. As to whether Post Danmark pursued an anti-competitive strategy, it can be seen from the documents before the Court that the complaint at the source of the main proceedings was based on the suggestion that Post Danmark, by a policy of low prices directed at certain of its competitor’s major customers, might drive that competitor from the market in question. However, as is apparent from the order for reference, it could not be established that Post Danmark had deliberately sought to drive out that competitor.
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22. On this point, it must be observed that, contrary to the submissions of the German and Netherlands Governments, the situation of a national of a Member State who, like Mr Schempp, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation (see, to that effect, Case C‑200/02 Zhu and Chen [2004] ECR I‑0000, paragraph 19).
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16. It should be noted as a preliminary observation that, according to consistent case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 40; and Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 36).
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40. According to settled case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651, paragraph 19; Case C-319/02 Manninen [2004] ECR I-7477, paragraph 19; and Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 29).
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38. S’agissant des effets des exonérations de petites quantités d’alcool éthylique sur le marché intérieur, il y a lieu de rappeler, en premier lieu, que, selon une jurisprudence constante de la Cour, lorsqu’une question est réglementée de manière harmonisée au niveau de l’Union, toute mesure nationale y relative doit être appréciée au regard des dispositions de cette mesure d’harmonisation (voir, notamment, arrêts DaimlerChrysler, C‑324/99, EU:C:2001:682, point 32; Roby Profumi, C‑257/06, EU:C:2008:35, point 14, ainsi que HSBC Holdings et Vidacos Nominees, C‑569/07, EU:C:2009:594, point 26). En second lieu, il convient de souligner que les directives 92/83 et 92/84 fixent les taux minimaux d’accise sur l’alcool éthylique sans conditionner l’imposition de celle-ci à l’effet que la production et la consommation privée dudit alcool pourraient avoir sur le marché.
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26 It must be borne in mind, first of all, that in view of its mandatory nature, the prohibition of discrimination between male and female workers not only applies to action on the part of public authorities, but also extends to all collective agreements designed to regulate employment relationships and to contracts between individuals (see, in particular, Case C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297, paragraph 11, and Case C-281/97 Krüger v Kreiskrankenhaus Ebersberg [1999] ECR I-0000, paragraph 20). That prohibition also applies to unilateral action by an employer vis-à-vis his employees.
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11 Since Article 119 is mandatory in nature, the prohibition of discrimination between male and female workers not only applies to the action of public authorities, but also extends to all collective agreements designed to regulate employment relationships and to contracts between individuals (see most recently the judgment of 27 June 1990 in Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591).
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84. Having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness (see, to that effect, Eind , paragraph 43).
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65. That principle forms part of the Community legal order (Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraph 30) and is binding on every national authority responsible for implementing Community law (see, to that effect, Case 230/78 Eridania-Zuccherifici nazionali and Società italiana per l’industria degli zuccheri [1979] ECR 2749, paragraph 31).
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30 THE FIRST POINT TO BE MADE IN THIS REGARD IS THAT THE PRINCIPLES OF THE PROTECTION OF LEGITIMATE EXPECTATION AND ASSURANCE OF LEGAL CERTAINTY ARE PART OF THE LEGAL ORDER OF THE COMMUNITY . THE FACT THAT NATIONAL LEGISLATION PROVIDES FOR THE SAME PRINCIPLES TO BE OBSERVED IN A MATTER SUCH AS THE RECOVERY OF UNDULY-PAID COMMUNITY AIDS CANNOT , THEREFORE , BE CONSIDERED CONTRARY TO THAT SAME LEGAL ORDER . MOREOVER , IT IS CLEAR FROM A STUDY OF THE NATIONAL LAWS OF THE MEMBER STATES REGARDING THE REVOCATION OF ADMINISTRATIVE DECISIONS AND THE RECOVERY OF FINANCIAL BENEFITS WHICH HAVE BEEN UNDULY PAID BY PUBLIC AUTHORITIES THAT THE CONCERN TO STRIKE A BALANCE , ALBEIT IN DIFFERENT WAYS , BETWEEN THE PRINCIPLE OF LEGALITY ON THE ONE HAND AND THE PRINCIPLES OF LEGAL CERTAINTY AND THE PROTECTION OF LEGITIMATE EXPECTATION ON THE OTHER IS COMMON THE LAWS OF THE MEMBER STATES .
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34
For a person to be regarded as someone whose trial has been ‘finally disposed of’ within the meaning of Article 54 of the CISA, in relation to the acts which he is alleged to have committed, it is necessary, in the first place, that further prosecution has been definitively barred (see, to that effect, judgment of 5 June 2014 in M, C‑398/12, EU:C:2014:1057, paragraph 31 and the case-law cited).
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36. It is admittedly true that the Court has also held that, where the European Union intends to implement a particular obligation assumed under the agreements concluded in the context of the World Trade Organisation (WTO) or where the European Union legal measure refers expressly to specific provisions of those agreements, it is for the Court, when appropriate, to review the legality of the Union measure at issue in the light of the WTO rules (see, to that effect, the judgments in Fediol v Commission , 70/87, EU:C:1989:254, paragraphs 19 to 22, and Nakajima v Council , C‑69/89, EU:C:1991:186, paragraphs 29 to 32; see, also, the judgment in LVP , C‑306/13, EU:C:2014:2465, paragraph 47 and case-law cited).
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32 In those circumstances, it is necessary to examine whether the Council went beyond the legal framework thus laid down, as Nakajima claims, and whether, by adopting the disputed provision, it acted in breach of Article 2(4) and (6) of the Anti-Dumping Code.
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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. Thus, according to consistent case-law, the principle of effectiveness prohibits a Member State from rendering the exercise of rights conferred by the EU legal order impossible in practice or excessively difficult (Case C-201/02 Wells [2004] ECR I-723, paragraph 67, and Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor [2006] ECR I-8559, paragraph 57).
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67. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) (see to this effect, inter alia, Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12, and Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 31).
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23. Further, it is clear from the second recital in the preamble to Directive 97/55 that the purpose of comparative advertising is also to stimulate competition between suppliers of goods and services to the consumer’s advantage.
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36. The duty upon the competent authority to state reasons for refusing to register a trade mark in relation to each of the goods or services for which such registration is sought also arises from the essential requirement for any decision of a national authority refusing the benefit of a right conferred by Community law to be subject to judicial review which is designed to secure effective protection for that right and which, accordingly, must cover the legality of the reasons for the decision (see, to that effect, Case 222/86 Heylens and Others [1987] ECR 4097, paragraphs 14 and 15).
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15 EFFECTIVE JUDICIAL REVIEW, WHICH MUST BE ABLE TO COVER THE LEGALITY OF THE REASONS FOR THE CONTESTED DECISION, PRESUPPOSES IN GENERAL THAT THE COURT TO WHICH THE MATTER IS REFERRED MAY REQUIRE THE COMPETENT AUTHORITY TO NOTIFY ITS REASONS . BUT WHERE, AS IN THIS CASE, IT IS MORE PARTICULARLY A QUESTION OF SECURING THE EFFECTIVE PROTECTION OF A FUNDAMENTAL RIGHT CONFERRED BY THE TREATY ON COMMUNITY WORKERS, THE LATTER MUST ALSO BE ABLE TO DEFEND THAT RIGHT UNDER THE BEST POSSIBLE CONDITIONS AND HAVE THE POSSIBILITY OF DECIDING, WITH A FULL KNOWLEDGE OF THE RELEVANT FACTS, WHETHER THERE IS ANY POINT IN THEIR APPLYING TO THE COURTS . CONSEQUENTLY, IN SUCH CIRCUMSTANCES THE COMPETENT NATIONAL AUTHORITY IS UNDER A DUTY TO INFORM THEM OF THE REASONS ON WHICH ITS REFUSAL IS BASED, EITHER IN THE DECISION ITSELF OR IN A SUBSEQUENT COMMUNICATION MADE AT THEIR REQUEST .
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32 THE OBJECT OF THAT PROVISION IS TO ENABLE AND ENCOURAGE AN AMICABLE SETTLEMENT OF DIFFERENCE WHICH HAS ARISEN BETWEEN OFFICIALS OR SERVANTS AND THE ADMINISTRATION ; IN ORDER TO COMPLY WITH THIS REQUIREMENT IT IS ESSENTIAL THAT THE ADMINISTRATION BE IN A POSITION TO KNOW THE COMPLAINTS OR REQUESTS OF THE PERSON CONCERNED .
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