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33
Finally, the Court has held that one of the principles on which the VAT system was based was neutrality, in the sense that within each country similar goods should bear the same tax burden whatever the length of the production and distribution chain (judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 20).
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20 Thus, in Case 89/81 Staatssecretaris van Financiën v Hong Kong Trade [1982] ECR 1277, paragraph 6, the Court held that it was apparent from the First Directive (Council Directive 67/227/EEC of 11 April 1967 on the harmonization of the legislation of the Member States concerning turnover tax (OJ, English Special Edition 1967, p. 16) that one of the principles on which the VAT system was based was neutrality, in the sense that within each country similar goods should bear the same tax burden whatever the length of the production and distribution chain.
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510 The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty.
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27. It follows that the concept of ‘medical care’ in Article 13A(1)(b) of the Sixth Directive and that of ‘the provision of medical care’ in letter (c) of the same provision are both intended to cover services which have as their purpose the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders (see, to that effect, Dornier , paragraph 48).
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48. It should also be borne in mind that, given the objective of reducing health care costs, the term " medical care" in Article 13A(1)(b) does not call for an especially narrow interpretation (see, to that effect, Commission v France , cited above, paragraph 23). However, the services covered by that term, like those covered by " provision of medical care" in letter (c) of the same provision, must have as their purpose the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders ( D. , cited above, paragraph 18; and Kügler , cited above, paragraph 38). It is not disputed that the treatment provided by qualified psychologists in a hospital environment fulfils the condition of having a therapeutic purpose.
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82. It has also been argued before the Court that the difference in remuneration is contained owing to the limits, specific to German civil service law, placed on the age at which civil servants can be appointed. It accordingly emerges from the observations of the German Government that, in the cases before the referring court, an age limit of 35 years applied and that, accordingly, any disparities in pay would not be as wide as the difference between the first and the last step in a grade.
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87 In the Barber judgment the Court held that pensions paid by occupational schemes constitute a consideration offered to workers by the employer by reason of the workers' employment. They are therefore to be regarded as pay within the meaning of Article 119 since they are wholly financed by the employer, or by both the employer and the workers, without any contribution on the part of the public authorities in any circumstances (paragraph 25).
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44 In those circumstances, overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many contracted-out pension schemes . It is appropriate, however, to provide for an exception in favour of individuals who have taken action in good time in order to safeguard their rights . Finally, it must be pointed out that no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment .
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222. Like that case-law on new developments in case-law, a change in an enforcement policy, in this instance the Commission’s general competition policy in the matter of fines, especially where it comes about as a result of the adoption of rules of conduct such as the Guidelines, may have an impact from the aspect of the principle of non-retroactivity.
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17 It should be noted in this regard that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13).
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13 It should be stressed in this regard that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes .
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30. Thus, for a body governed by public law to be regarded as a taxable person within the meaning of the VAT Directive, it must, in accordance with Article 9(1) of that directive, independently carry out any economic activity.
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41. In that regard, it should be noted that according to the well-established case-law of the Court, a cultural policy may constitute an overriding requirement relating to the general interest which justifies a restriction on the freedom to provide services. The maintenance of the pluralism which that policy seeks to safeguard is connected with freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which freedom is one of the fundamental rights guaranteed by the Community legal order (see Case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I‑4007, paragraph 23; Commission v Netherlands , paragraph 30; Case C-148/91 Veronica Omroep Organisatie [1993] ECR I‑487, paragraph 10; and TV10 , paragraph 19).
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23 A cultural policy understood in that sense may indeed constitute an overriding requirement relating to the general interest which justifies a restriction on the freedom to provide services. The maintenance of the pluralism which that Dutch policy seeks to safeguard is connected with freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, which is one of the fundamental rights guaranteed by the Community legal order (Case 4/73 Nold v Commission [1974] ECR 491, paragraph 13).
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53
In that regard, it is appropriate to add that, unless national legislation authorises resident financial institutions to use, in the calculation of the financing costs incurred, interest rates such as those mentioned by the referring court in its third question for a preliminary ruling, that court cannot take those rates into account in a situation such as that at issue in the main proceedings.
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28. The requirement imposed by Article 19 of the Statute of the Court of Justice is based on a view of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs (see, to that effect, Case 155/79 AM & S Europe v Commission EU:C:1982:157, paragraph 24; Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission EU:C:2010:512, paragraph 42; and Joined Cases C‑422/11 P and C‑423/11 P Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission EU:C:2012:553, paragraph 23). Moreover, the Court has held previously that, as no provision is made in the Statute or Rules of Procedure of the Court of Justice for a derogation from or exception to that obligation, an application signed by the applicant himself is insufficient for the purposes of instituting proceedings (see order in Case C‑502/06 P Correia de Matos v Parliament EU:C:2007:696, paragraph 12).
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23. In that regard, it should be noted, as the General Court correctly held at paragraph 17 of the contested order, that the conception of the lawyer’s role in the legal order of the European Union, which is derived from the legal traditions common to the Member States, and on which Article 19 of the Statute of the Court of Justice is based, is that of collaborating in the administration of justice and of being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs (see, to that effect, Case 155/79 AM & S Europe v Commission [1982] ECR 1575, paragraph 24; Akzo Nobel Chemicals and Akcros Chemicals v Commission , paragraph 42; and EREF v Commission , paragraph 52).
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43. Applied to an economic entity, the term means the powers, granted to those in charge of that entity, to organise, relatively freely and independently, the work within that entity in the pursuit of its specific economic activity and, more particularly, the powers to give orders and instructions, to allocate tasks to employees of the entity concerned and to determine the use of assets available to the entity, all without direct intervention from other organisational structures of the employer (‘the organisational powers’).
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37. Rather, under the division of jurisdiction between the European Union Courts and the national courts, the Court of Justice must take account of the factual and legislative context in which the questions put to it are set, as described in the order for reference (Case C-63/08 Pontin [2009] ECR I-10467, paragraph 38 and the case-law cited).
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38. It should also be noted that the Court must take account, under the division of jurisdiction between the Community judicature and the national courts, of the factual and legislative context in which the questions put to it are set, as described in the order for reference (see, in particular, Case C‑330/07 Jobra [2008] ECR I‑0000, paragraph 17, and case-law cited). Therefore, irrespective of the criticism expressed by the Luxembourg Government in regard to the interpretation of national law adopted by the national court, this reference for a preliminary ruling must be considered in the light of that court’s interpretation of that law (see, by analogy, Case C‑346/05 Chateignier [2006] ECR I‑10951, paragraph 22, and Joined Cases C‑378/07 to C-380/07 Angelidaki and Others [2009] ECR I-0000, paragraph 51). The Court’s answer to the first two questions must therefore be based on the premiss that an employee dismissed during her pregnancy has no remedy under Luxembourg law apart from an action for nullity and reinstatement.
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50. Il convient, tout d’abord, de rappeler que, pour se conformer à un arrêt d’annulation et lui donner pleine exécution, l’institution est tenue de respecter non seulement le dispositif de l’arrêt, mais également les motifs qui ont amené à celui-ci et en constituent le soutien nécessaire, en ce sens qu’ils sont indispensables pour déterminer le sens exact de ce qui a été jugé dans le dispositif (voir, en ce sens, arrêts du 26 avril 1988, Asteris e.a./Commission, 97/86, 99/86, 193/86 et 215/86, Rec. p. 2181, point 27, ainsi que du 3 octobre 2000, Industrie des poudres sphériques/Conseil, C‑458/98 P, Rec. p. I‑8147, point 81).
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24. Also according to settled case-law, it follows that the concept of " matters relating to a contract" in Article 5(1) of the Brussels Convention is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another ( Handte , paragraph 15, Réunion européenne and Others , paragraph 17, and Tacconi , paragraph 23, cited above).
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15 It follows that the phrase "matters relating to a contract", as used in Article 5(1) of the Convention, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another.
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55. Indeed it is the second type of objective, namely that of preventing the use of betting and gaming activities for criminal or fraudulent purposes by channelling them into controllable systems, that is identified, both by the Corte suprema di cassazione and by the Italian Government in its observations before the Court, as the true goal of the Italian legislation at issue in the main proceedings. Viewed from that perspective, it is possible that a policy of controlled expansion in the betting and gaming sector may be entirely consistent with the objective of drawing players away from clandestine betting and gaming – and, as such, activities which are prohibited – to activities which are authorised and regulated. As the Belgian and French Governments, in particular, have pointed out, in order to achieve that objective, authorised operators must represent a reliable, but at the same time attractive, alternative to a prohibited activity. This may as such necessitate the offer of an extensive range of games, advertising on a certain scale and the use of new distribution techniques.
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31 By contrast, Member States may establish the criteria and/or thresholds necessary to determine which of the projects covered by Annex II are to be subject to an assessment (Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraphs 49 to 53). When establishing those thresholds and/or criteria, Member States must take account not only of the size of projects, but also their nature and location (Case C-392/96 Commission v Ireland [1999] ECR I-5901, paragraphs 65 to 67).
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52 In a situation such as the present, it must be accepted that the Member State concerned was entitled to fix criteria relating to the size of dykes in order to establish which dyke projects had to undergo an impact assessment. The question whether, in laying down such criteria, the Member State went beyond the limits of its discretion cannot be determined in relation to the characteristics of a single project. It depends on an overall assessment of the characteristics of projects of that nature which could be envisaged in the Member 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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15 According to the case-law of the Court of Justice, a regulation can validly enter into force on the date of its publication (see, inter alia, the judgment in Case 57/72 Westzucker [1973] ECR 321, paragraph 19). The Court has also held that, in the absence of evidence to the contrary, a regulation is to be regarded as published throughout the Community on the date borne by the Official Journal of the European Communities containing the text of that regulation (Case 98/78 Racke [1979] ECR 69, paragraph 17). The Court has stated in this respect that, should evidence be produced indicating that that date does not correspond to the date on which the issue was in fact available, in the version in the language of the party, at the Office of Official Publications of the European Communities at Luxembourg, regard must be had to the later date (Racke, cited above, paragraph 15, and Case C-370/96 Covita [1998] ECR I-7711, paragraph 27).
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17THEREFORE THE ANSWER TO THE QUESTION RAISED SHOULD BE THAT ARTICLE 191 OF THE EEC TREATY MUST BE INTERPRETED TO MEAN THAT , IN THE ABSENCE OF EVIDENCE TO THE CONTRARY , A REGULATION IS TO BE REGARDED AS PUBLISHED THROUGHOUT THE COMMUNITY ON THE DATE BORNE BY THE ISSUE OF THE OFFICIAL JOURNAL CONTAINING THE TEXT OF THAT REGULATION .
QUESTIONS 3 AND 4
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36. Enfin, quant à l’argument de la requérante tiré de décisions nationales reconnaissant l’usage sérieux de certaines de ses marques nationales pour des produits uniquement commercialisés à Bad Reichenhall, il y a lieu de relever, comme l’a fait à juste titre le Tribunal au point 52 de l’arrêt attaqué, que le régime communautaire des marques est un système autonome constitué d’un ensemble de règles et poursuivant des objectifs qui lui sont spécifiques, son application étant indépendante de tout système national et la légalité des décisions des chambres de recours de l’OHMI devant être appréciée uniquement sur le fondement du règlement n° 40/94, tel qu’il est interprété par le juge de l’Union (arrêt L & D/OHMI, C‑488/06 P, EU:C:2008:420, point 58). Ledit argument ne saurait donc prospérer.
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44 The Fund does not accept that Mr Pavlov and the other applicants practise their profession under a contract of employment and has issued enforcement orders against them for the recovery of arrears of premiums.
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36 It must first be noted that, according to settled case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Case C-244/94 Fédération Française des Sociétés d'Assurances and Others v Ministère de l'Agriculture et de la Pêche [1995] ECR I-4013, paragraph 14; and Case C-55/96 Job Centre [1997] ECR I-7119, paragraph 21), and that any activity consisting in offering goods and services on a given market is an economic activity (Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7).
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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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16. The Court has also held that, in that context of broad interpretation, the concept of ‘database’ within the meaning of Directive 96/9 is specifically defined in terms of its function (see judgment in Fixtures Marketing , C‑444/02, EU:C:2004:697, paragraph 27). As evidenced by recitals 9, 10 and 12 in the preamble thereto, the legal protection introduced thereby is aimed at stimulating investment in data storage and processing systems in order to contribute to the development of an information market against a background of exponential growth in the amount of information generated and processed annually in all sectors of activity (see judgments in Fixtures Marketing , C‑46/02, EU:C:2004:694, paragraph 33; The British Horseracing Board and Others , C‑203/02, EU:C:2004:695, paragraph 30; Fixtures Marketing , C‑338/02, EU:C:2004:696, paragraph 23; and Fixtures Marketing , C‑444/02, EU:C:2004:697, paragraph 39).
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30. Under the 9th, 10th and 12th recitals of the preamble to the directive, its purpose, as William Hill points out, is to promote and protect investment in data ‘storage’ and ‘processing’ systems which contribute to the development of an information market against a background of exponential growth in the amount of information generated and processed annually in all sectors of activity. It follows that the expression ‘investment in … the obtaining, verification or presentation of the contents’ of a database must be understood, generally, to refer to investment in the creation of that database as such.
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83. En outre, il ressort de ce rapport que les autorités françaises ont exclu de la récupération un montant d’aides d’environ 35 millions d’euros, hors intérêts, au seul motif qu’il correspond à des aides versées à des entreprises ayant fait l’objet d’un rachat ou d’une fusion-absorption dans des conditions de prix de marché. Or, une telle circonstance, même à la supposer avérée, n’affecte pas, en tant que telle, l’obligation de récupération, l’État membre concerné restant tenu de procéder à cette récupération, selon le cas, auprès de l’entreprise vendue (arrêt Allemagne/Commission, C-277/00, EU:C:2004:238, point 81) ou du vendeur (arrêts Banks, C-390/98, EU:C:2001:456, point 78, ainsi que Falck et Acciaierie di Bolzano/Commission, C-74/00 P et C-75/00 P, EU:C:2002:524, point 180).
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114. Admittedly, the Court has also held that judicial review is limited with regard to whether a measure comes within the scope of Article 87(1) EC, in a case where the appraisals by the Commission are technical or complex in nature (see, inter alia, France v Ladbroke Racing and Commission , paragraph 25; Matra v Commission , paragraphs 29 and 30; Case C-56/93 Belgium v Commission , paragraphs 10 and 11; and Spain v Lenzing , paragraph 56). However, the Court of First Instance did not establish that this was the case here.
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10 According to settled case-law, the charging by a Member State, or an entity on which it exerts influence, of a tariff fixed at a level lower than that which would normally be chosen may be regarded as aid for the purposes of Article 92(1) of the Treaty. In such circumstances, the State, or the entity on which it exerts influence, does not apply the preferential tariff as an ordinary economic agent but uses it to confer a financial advantage on certain undertakings by forgoing the profit which it would normally realize. On the other hand, a preferential tariff does not constitute aid if, in the context of the market in question, it is objectively justified by economic reasons such as the need to withstand competition on the same market (see, to that effect, Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219, paragraphs 28 to 30).
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71. That finding is fully transposable to the provision of public health services in the field of pharmacy.
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58
In the event that the referring court should conclude that the limitation of Mr Daouidi’s capacity is ‘long-term’, it is necessary to recall that unfavourable treatment on grounds of disability undermines the protection provided for by Directive 2000/78 only in so far as it constitutes discrimination within the meaning of Article 2(1) of that directive (see judgments of 11 July 2006, Chacón Navas, C‑13/05, EU:C:2006:456, paragraph 48, and of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 71).
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48. Unfavourable treatment on grounds of disability undermines the protection provided for by Directive 2000/78 only in so far as it constitutes discrimination within the meaning of Article 2(1) of that 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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38. In the case of disputes arising from individual measures, the limitation period begins to run as soon as the decision has produced its effects vis-à-vis the persons concerned by it (Case C‑282/05 P Holcim (Deutschland) v Commission , paragraph 30, and judgment of 11 June 2009 in Case C‑335/08 P Transports Schiocchet – Excursions v Commission , paragraph 33).
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33. Le délai de prescription de cinq ans visé à l’article 46 du statut de la Cour de justice commence à courir lorsque le dommage à réparer s’est concrétisé. Dès lors, s’agissant des cas où la responsabilité de la Communauté trouve sa source dans un acte normatif, ce délai de prescription ne saurait commencer à courir avant que les effets dommageables de cet acte ne se soient produits et, partant, avant le moment où les intéressés ont dû subir un préjudice certain (voir, en ce sens, arrêts du 13 novembre 1984, Birra Wührer e.a./Conseil et Commission, 256/80, 257/80, 265/80, 267/80, 5/81, 51/81 et 282/82, Rec. p. 3693, point 15, ainsi que Commission/Cantina sociale di Dolianova e.a., précité, point 54). Dans le cas des contentieux nés d’actes individuels, le délai de prescription commence à courir lorsque la décision a produit ses effets à l’égard des personnes qu’elle vise [voir, en ce sens, arrêt du 19 avril 2007, Holcim (Deutschland)/Commission, C‑282/05 P, Rec. p. I‑2941, point 30].
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25 Since that is a derogation from the general rules laid down by the directive, Article 3(2), third indent, may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure. Furthermore, the scope of the derogations which it lays down must be determined in the light of the aims pursued by the directive (Case C-335/94 Mrozek and Jäger [1996] ECR I-1573, paragraph 9).
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23. Furthermore, as the Court has pointed out on a number of occasions, the provisions of the Sixth Directive laying down exceptions to the general principle that VAT is to be levied on all goods or services supplied for consideration by a taxable person are to be interpreted strictly (see, to that effect, Joined Cases C‑308/96 and C-94/97 Madgett and Baldwin [1998] ECR I-6229, paragraph 34; Case C-384/01 Commission v France [2003] ECR I‑4395, paragraph 28; Joined Cases C-394/04 and C-395/04 Ygeia [2005] ECR I-0000, paragraphs 15 and 16; and Case C‑280/04 Jyske Finans [2005] ECR I-0000, paragraph 21). For that reason as well, the exemptions with refund of the tax paid referred to in Article 28(2)(a) of the Sixth Directive cannot cover items which were, as at 1 January 1991, excluded from such an exemption by the national legislature.
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16. Moreover, the aim of Article 13A of the Sixth Directive is to exempt from VAT certain activities which are in the public interest. That provision does not, however, provide exemption from VAT for every activity performed in the public interest, but only for those which are listed therein and described in great detail (see, inter alia, Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 18, and Case C-8/01 Taksatorringen [2003] ECR I‑13711, paragraph 60).
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99. Whether undertakings have adopted conduct having as its object or effect the prevention, restriction or distortion of competition cannot be assessed in the abstract, but must be examined with reference to the territory, within the Union or outside it, in which the conduct in question had such an object or effect, and to the period during which the conduct in question had such an object or effect.
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33 As the Court has held on several occasions, a comparison of the national systems shows that the problem of disputing charges which have been unlawfully claimed or refunding charges which have been paid when not due is settled in different ways in the various Member States, and even within a single Member State, according to the various kinds of taxes or charges in question. In certain cases, objections or claims of this type are subject to specific procedural conditions and time-limits under the law with regard both to complaints submitted to the tax authorities and to legal proceedings. In other cases, claims for repayment of charges which were paid but not due must be brought before the ordinary courts, mainly in the form of claims for the refunding of sums paid but not owed, such actions being available for varying lengths of time, in some cases for the limitation period laid down under the general law (see Case 68/79 Just v Ministry for Fiscal Affairs [1980] ECR 501, paragraphs 22 and 23; Denkavit Italiana, cited above, paragraphs 23 and 24; Case 811/79 Amministrazione delle Finanze dello Stato v Ariete [1980] ECR 2545, paragraphs 10 and 11, and Case 826/79 Amministrazione delle Finanze dello Stato v Mireco [1980] ECR 2559, paragraphs 11 and 12).
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11 IN OTHER CASES , CLAIMS FOR REPAYMENT OF CHARGES WHICH WERE PAID BUT NOT OWED MUST BE BROUGHT BEFORE THE ORDINARY COURTS , MAINLY IN THE FORM OF CLAIMS FOR THE RECOVERY OF OVERPAYMENTS . SUCH ACTIONS ARE AVAILABLE FOR VARYING LENGTHS OF TIME , IN SOME CASES FOR THE LIMITATION PERIOD LAID DOWN UNDER THE GENERAL LAW , WITH THE RESULT THAT MEMBER STATES INVOLVED MAY BE FACED WITH AN ACCUMULATION OF CLAIMS FOR A CONSIDERABLE AMOUNT WHERE CERTAIN NATIONAL TAX PROVISIONS HAVE BEEN FOUND TO BE INCOMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW .
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35
The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment in P and S, C‑579/13, EU:C:2015:369, paragraph 41).
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11 When addressing that question, it must be borne in mind that the Court has consistently held that it has no jurisdiction, in the context of the application of Article 177 of the Treaty, to decide whether a national provision is compatible with Community law. It may, however, extract from the wording of the question formulated by the national court, having regard to the facts stated by it, those elements which concern the interpretation of Community law, for the purpose of enabling that court to resolve the legal problem before it (see, inter alia, Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others v Ente Nazionale Risi [1994] ECR I-711, paragraph 19, and Case C-15/96 Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47, paragraph 9).
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19 In that connection it must be recalled that the Court has consistently held that, in the context of the application of Article 177 of the Treaty, it has no jurisdiction to decide whether a national provision is compatible with Community law. The Court may, however, extract from the wording of the questions formulated by the national court, and having regard to the facts stated by the latter, those elements which concern the interpretation of Community law for the purpose of enabling that court to resolve the legal problems before it (see the judgment in Cases C-149/91 and C-150/91 Sanders Adour et Guyomarc' h Orthez Nutrition Animale [1992] ECR I-3899, paragraph 10).
Substance
Question 1, common to the three cases
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43. Admittedly, it is open to the Netherlands sickness insurance funds to enter into agreements with hospital establishments outside the Netherlands. In such a case no prior authorisation would be required in order for the cost of treatment provided by such establishments to be assumed under the ZFW. However, with the exception of hospitals situated in regions adjoining the Netherlands, it seems unlikely that a significant number of hospitals in other Member States would ever enter into agreements with those sickness insurance funds, given that their prospects of admitting patients insured by those funds remain uncertain and limited (Smits and Peerbooms , paragraphs 65 and 66).
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26. In that connection, according to settled case-law, the rule of special jurisdiction laid down in Article 5(3) of Regulation No 44/2001 is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see, to that effect, Zuid‑Chemie , paragraph 24, and eDate Advertising and Others , paragraph 40).
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40. It is settled case-law that the rule of special jurisdiction laid down, by way of derogation from the principle of jurisdiction of the courts of the place of domicile of the defendant, in Article 5(3) of the Regulation is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings ( Zuid‑Chemie , paragraph 24 and the case-law cited).
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45. If the opposite were true, the tariff classification of the imported components would depend on a fact which not intrinsic to those goods, since the customs authorities are not in a position to ascertain whether components which were not presented to customs have to be worked or not before being capable of assembly with the imported components, which would undermine the objective of ease of verification by the customs and legal certainty which must govern that classification.
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19 It should be borne in mind, first of all, that in its judgment in Case C-156/87 Gestetner v Council and Commission [1990] ECR 781, at paragraph 27, concerning Mita' s sales to the OEM Gestetner, the Court pointed out that the PPCs produced by Mita were sold through Mita Europe, which handled customers' orders, sent them the invoices and received the relevant payments and that the price paid by purchasers to Mita Europe was not the same as the price invoiced by Mita Japan to Mita Europe.
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27 Plain paper photocopiers produced by Mita are sold through Mita Europe, which handles customers' orders, sends them the invoices and receives the relevant payments . However, the price paid by purchasers to Mita Europe is not the same as the price invoiced by Mita Japan to Mita Europe .
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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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23
The Court has also held, in relation to a prohibition under German law of mail-order sales of medicinal products the sale of which is, in the Member State concerned, restricted to pharmacies, that such a prohibition is more of an obstacle to pharmacies outside Germany than to those within Germany. Although there is little doubt that, as a result of the prohibition, pharmacies in Germany cannot use an extra or alternative method of gaining access to the German market consisting of end consumers of medicinal products, they are nonetheless able to sell the products in their dispensaries. By contrast, for pharmacies not established in Germany, the internet provides a more significant way by which to gain direct access to the German market. A prohibition which has a greater impact on pharmacies established outside German territory could impede access to the market for products from other Member States more than it impedes access for domestic products, and therefore constitutes a measure having equivalent effect to a quantitative restriction within the meaning of Article 34 TFEU (see, to that effect, judgment of 11 December 2003, Deutscher Apothekerverband, C‑322/01, EU:C:2003:664, paragraphs 74 to 76).
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76. The answer to Question 1(a) is therefore that a national prohibition on the sale by mail order of medicinal products the sale of which is restricted to pharmacies in the Member State concerned, such as the prohibition laid down in Paragraph 43(1) of the AMG, is a measure having an effect equivalent to a quantitative restriction for the purposes of Article 28 EC.
Whether there is any justification for the prohibition on mail-order sales (Question 1(b))
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Sur la base des éléments factuels rappelés au point 64 du présent arrêt, il y a lieu de constater que, en ne prenant pas les mesures nécessaires pour interdire la gestion incontrôlée des déchets sur le site en cause, la République de Slovénie a manqué aux obligations qui lui incombent en vertu de l’article 36, paragraphe 1, de la directive 2008/98 (voir, en ce sens, arrêt du 11 décembre 2014, , C‑677/13, non publié, EU:C:2014:2433, point 81).
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27. S’agissant des notes explicatives du SH, il y a lieu d’ajouter que, en dépit du fait qu’elles n’ont pas de force contraignante, elles constituent des instruments importants aux fins d’assurer une application uniforme du tarif douanier commun et fournissent, en tant que telles, des éléments valables pour son interprétation (voir, en ce sens, arrêts Kloosterboer Services, C-173/08, EU:C:2009:382, point 25, et Agroferm, C-568/11, EU:C:2013:407, point 28).
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25. The explanatory notes drawn up by the Commission as regards the CN and by the World Customs Organisation as regards the HS are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (Case C-250/05 Turbon International [2006] ECR I-10531, paragraph 16).
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40 The Community institutions are required to act in particular when the transition to the common organization of the market infringes certain traders' fundamental rights protected by Community law, such as the right to property and the right to pursue a professional or trade activity.
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52 It is settled case-law that an act of a Community institution is vitiated by misuse of powers if it was adopted with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69).
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69 The Court' s case-law (see, in particular, Case C-156/93 Parliament v Commission [1995] ECR I-2019, paragraph 31) defines misuse of powers as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.
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77. In any event, even if the risk run by the contracting authority is very limited, it is necessary that the contracting authority transfer to the concession holder all, or at lea st a significant share, of the operating risk which it faces, in order for a service concession to be found to exist.
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59. With respect to parallel trade, the Court has already held that, in principle, agreements aimed at prohibiting or limiting parallel trade have as their object the prevention of competition (see, to that effect, Case 19/77 Miller International Schallplaten v Commission [1978] ECR 131, paragraphs 7 and 18, and Joined Cases 32/78, 36/78 to 82/78 BMW Belgium and Others v Commission [1979] ECR 2435, paragraphs 20 to 28 and 31).
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28 FOR ALL THOSE REASONS , THEREFORE , IT MUST BE CONCLUDED THAT THE CIRCULAR FROM BMW BELGIUM OF 29 SEPTEMBER 1975 AND THE CIRCULAR FROM THE BELGIAN DEALERS ' ADVISORY COMMITTEE OF THE SAME DATE , CONSIDERED ACCORDING TO THEIR TENOR AND IN RELATION TO THE LEGAL AND FACTUAL CONTEXT IN WHICH THEY ARE SET AND IN RELATION TO THE CONDUCT OF THE PARTIES , INDICATE AN INTENTION TO PUT AN END TO ALL EXPORTS OF NEW BMW VEHICLES FROM BELGIUM .
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59. In making that first assessment, the customs authorities are to take into account, in particular, the possibility of reviewing the statements contained in the declaration to be revised and in the application for revision ( Overland Footwear , paragraph 47).
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51 Article 56 of the Treaty permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of a treatment facility or medical service on national territory is essential for the public health and even the survival of the population (see, with respect to public security within the meaning of Article 36 of the Treaty, Case 72/83 Campus Oil v Minister for Industry and Energy [1984] ECR 2727, paragraphs 33 to 36).
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36 IT SHOULD BE ADDED THAT TO COME WITHIN THE AMBIT OF ARTICLE 36 , THE RULES IN QUESTION MUST BE JUSTIFIED BY OBJECTIVE CIRCUMSTANCES CORRESPONDING TO THE NEEDS OF PUBLIC SECURITY . ONCE THAT JUSTIFICATION HAS BEEN ESTABLISHED , THE FACT THAT THE RULES ARE OF SUCH A NATURE AS TO MAKE IT POSSIBLE TO ACHIEVE , IN ADDITION TO THE OBJECTIVES COVERED BY THE CONCEPT OF PUBLIC SECURITY , OTHER OBJECTIVES OF AN ECONOMIC NATURE WHICH THE MEMBER STATE MAY ALSO SEEK TO ACHIEVE , DOES NOT EXCLUDE THE APPLICATION OF ARTICLE 36 .
THE QUESTION WHETHER THE MEASURES ARE CAPABLE OF ENSURING SUPPLIES AND THE PRINCIPLE OF PROPORTIONALITY
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31. Moreover, it is apparent from recitals 5, 6 and 24 in the preamble to Directive 2004/83 that the minimum requirements for granting subsidiary protection must serve to complement and add to the protection of refugees enshrined in the Geneva Convention through the identification of persons genuinely in need of international protection and through such persons being offered an appropriate status (Case C‑285/12 Diakite EU:C:2014:39, paragraph 33).
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36. It is settled case-law that a citizen of the European Union lawfully resident in the territory of the host Member State can rely on Article 12 EC in all situations which fall within the scope ratione materiae of Community law (Case C-85/96 Martínez Sala [1998] ECR I‑2691, paragraph 63, and Bidar , paragraph 32).
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63 It follows that a citizen of the European Union, such as the appellant in the main proceedings, lawfully resident in the territory of the host Member State, can rely on Article 6 of the Treaty in all situations which fall within the scope ratione materiae of Community law, including the situation where that Member State delays or refuses to grant to that claimant a benefit that is provided to all persons lawfully resident in the territory of that State on the ground that the claimant is not in possession of a document which nationals of that same State are not required to have and the issue of which may be delayed or refused by the authorities of that State.
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57. It is not necessary in that respect to find that the domestic provision in question does in practice affect a substantially higher proportion of such migrant workers. It is sufficient that it is liable to have such an effect (see, by analogy, Case C‑237/94 O’Flynn [1996] ECR I-2617, paragraph 21).
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97
The Court has also held that the question whether there is an infringement of the rights of the defence, including the right of access to the file, must be examined in relation to the specific circumstances of each case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 102, and of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraphs 32 and 34).
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32. It is settled case-law that the rights of the defence, which include the right to be heard and the right to have access to the file, are among the fundamental rights forming an integral part of the European Union legal order and enshrined in the Charter of Fundamental Rights of the European Union (see, to that effect, Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi [2013] ECR I‑0000, paragraphs 98 and 99 and the case-law cited). It is also true that observance of those rights is required even where the applicable legislation does not expressly provide for such a procedural requirement (see, to that effect, Case C‑277/11 M. [2012] ECR I‑0000, paragraph 86 and the case-law cited).
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20 It should be added that although the conduct of a private investor with which the intervention of the public investor pursuing economic policy aims must be compared need not be the conduct of an ordinary investor laying out capital with a view to realizing a profit in the relatively short term, it must at least be the conduct of a private holding company or a private group of undertakings pursuing a structural policy - whether general or sectorial - and guided by prospects of profitability in the longer term.
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48. Furthermore, as the Court has already held, it does not appear that the Community has assumed, under the EC Treaty, the powers previously exercised by the Member States in the field to which Marpol 73/78 applies, nor that, consequently, its provisions have the effect of binding the Community (Case C-379/92 Peralta [1994] ECR I-3453, paragraph 16). In this regard, Marpol 73/78 can therefore be distinguished from GATT 1947 within the framework of which the Community progressively assumed powers previously exercised by the Member States, with the consequence that it became bound by the obligations flowing from that agreement (see to this effect, in particular, International Fruit Company and Others , paragraphs 10 to 18). Accordingly, this case-law relating to GATT 1947 cannot be applied to MARPOL 73/78.
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13 THAT INTENTION WAS MADE CLEAR IN PARTICULAR BY ARTICLE 110 OF THE EEC TREATY, WHICH SEEKS THE ADHERENCE OF THE COMMUNITY TO THE SAME AIMS AS THOSE SOUGHT BY THE GENERAL AGREEMENT, AS WELL AS BY THE FIRST PARAGRAPH OF ARTICLE 234 WHICH PROVIDES THAT THE RIGHTS AND OBLIGATIONS ARISING FROM AGREEMENTS CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE TREATY, AND IN PARTICULAR MULTILATERAL AGREEMENTS CONCLUDED WITH THE PARTICIPATION OF MEMBER STATES, ARE NOT AFFECTED BY THE PROVISIONS OF THE TREATY .
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90. In the case where the ad, while not suggesting the existence of an economic link, is vague to such an extent on the origin of the goods or services at issue that normally informed and reasonably attentive internet users are unable to determine, on the basis of the advertising link and the commercial message attached thereto, whether the advertiser is a third party vis-à-vis the proprietor of the trade mark or, on the contrary, economically linked to that proprietor, the conclusion must also be that there is an adverse effect on that function of the trade mark.
ii) Adverse effect on the advertising function
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36
Furthermore, as is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity (see the judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 19 and the case-law cited).
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19. As is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity (see, by analogy, Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 43).
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28 In view of the distinction drawn in the combined nomenclature between apparatus and parts of apparatus, and in view of the obvious importance of the electronic components, the Commission could not reasonably consider that the mechanical assembly of a mecadeck on its own had the essential character of a video recorder, enabling it to be classified under the same tariff heading as complete video recorders.
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38. In that regard, the General Court correctly recalled first, in paragraphs 69 and 70 of the judgment under appeal, the settled case-law of the Court of Justice, confirmed by the latter since the entry into force of the Lisbon Treaty (see, in particular, Case C-501/11 P Schindler Holding and Others v Commission [2013] ECR I-0000, paragraphs 107 to 111), that, when a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, there is a simple presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. According to that case-law, the Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see, in particular, Joined Cases C-628/10 P and C-14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR I-0000, paragraph 47).
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109. Furthermore, first, the aforesaid presumption is based on the fact that, save in quite exceptional circumstances, a company holding all, or almost all, the capital of a subsidiary can, by dint merely of holding it, exercise decisive influence over that subsidiary’s conduct and, second, it is within the sphere of operations of those entities against which the presumption operates that evidence of the lack of actual exercise of that power to influence is generally apt to be found. The presumption is, however, rebuttable and the entities wishing to rebut it may adduce all factors relating to the economic, organisational and legal links tying the subsidiary to the parent company that they consider to be capable of demonstrating that the subsidiary and the parent company do not constitute a single economic entity, but that the subsidiary acts independently on the market (see Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2008] ECR I‑9925, paragraph 29; Akzo Nobel and Others v Commission , paragraph 61; and Elf Aquitaine v Commission , paragraphs 57 and 65).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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51. It has also pointed out on a number of occasions that it is important not to confer on one or the other of those figures an importance which is disproportionate in relation to the other factors to be assessed in relation to the gravity of the infringement ( Musique Diffusion française and Others v Commission , paragraph 121; Dansk Rørindustri and Others v Commission , paragraph 243; Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission , paragraph 100; and Case C‑510/06 P Archer Daniels Midland v Commission , paragraph 74).
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243. It follows that, on the one hand, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure (see Musique Diffusion française and Others v Commission , paragraph 121, and Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 111).
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12 FURTHERMORE , IT MUST BE NOTED THAT WHILST MEASURES OF A PURELY PREPARATORY CHARACTER MAY NOT THEMSELVES BE THE SUBJECT OF AN APPLICATION FOR A DECLARATION THAT THEY ARE VOID , ANY LEGAL DEFECTS THEREIN MAY BE RELIED UPON IN AN ACTION DIRECTED AGAINST THE DEFINITIVE ACT FOR WHICH THEY REPRESENT A PREPARATORY STEP .
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13. In that regard, it follows from the very terms of the second paragraph of Article 226 EC that the Commission may bring an action for failure to fulfil obligations before the Court only if the Member State concerned has failed to comply with the reasoned opinion within the period laid down by the Commission for that purpose (see Case C-362/90 Commission v Italy , cited above, paragraph 9).
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9 In that respect it should first be noted that it follows from the very terms of the second paragraph of Article 169 of the Treaty that the Commission may bring an action for failure to fulfil obligations before the Court only if the Member State concerned does not comply with the opinion within the period laid down by the Commission for that purpose.
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52. Au regard des considérations visées aux points 28 à 35 du présent arrêt, il ne saurait être soutenu que les activités d’attestation des SOA constituent une participation directe et spécifique à l’exercice de l’autorité publique.
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54. In the absence of such a definition in EU law, the meaning and scope of that concept must, in accordance with settled case-law of the Court, be determined by taking into account both the terms in which the provision of EU law concerned is couched and its context (see, in particular, judgments in Lundberg , C‑317/12, EU:C:2013:631, paragraph 19; SFIR and Others , C‑187/12 to C‑189/12, EU:C:2013:737, paragraph 24; and Bouman , C‑114/13, EU:C:2015:81, paragraph 31).
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24. Ensuite, il y a lieu de rappeler que, en l’absence d’une telle définition, la portée de ladite notion, figurant à l’article 3 du règlement de base et incluant, en vertu de l’article 4, paragraphe 1, sous a) et b), du règlement d’application, tant les «installations nécessaires à la production de sucre» que les «installations [...] directement liée[s] à la production de sucre», doit être établie, selon une jurisprudence constante de la Cour, en considération du contexte général dans lequel elle est utilisée et conformément à son sens habituel en langage courant (voir, en ce sens, arrêts du 4 mai 2006, Massachusetts Institute of Technology, C‑431/04, Rec. p. I‑4089, point 17 et jurisprudence citée, ainsi que du 13 décembre 2012, BLV Wohn- und Gewerbebau, C‑395/11, point 25). Enfin, il y a lieu, pour l’interprétation d’une disposition du droit de l’Union, de tenir compte des objectifs poursuivis par la réglementation dont elle fait partie (voir, en ce sens, arrêt du 29 janvier 2009, Petrosian, C‑19/08, Rec. p. I‑495, point 34 et jurisprudence citée).
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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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64. However, it must be held that, with regard inter alia to frontier workers, the Court has allowed certain grounds of justification concerning legislation which distinguishes between residents and non-residents carrying out a professional activity in the State concerned, depending on the extent of their integration in the society of that Member State or their attachment to that State (see, to that effect, Hartmann , paragraphs 35 and 36; Geven , paragraph 26; and Hendrix , paragraphs 54 and 55).
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35. It appears from the order for reference that, under Paragraph 1(4) of the BErzGG, in the version applicable at the material time, frontier workers who carry on an occupation in Germany but reside in another Member State can claim German child-raising allowance if they carry on an occupation of a more than minor extent.
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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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102
In that regard, it must be noted that it is true that the Court has held that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual’s delay in initiating proceedings against it in order to protect rights conferred upon that individual by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time (see judgment of 25 July 1991, Emmott , C‑208/90, EU:C:1991:333, paragraph 23).
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23 It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual' s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
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S’agissant de la deuxième branche, il y a lieu de rappeler que, si les conditions de recevabilité du recours prévues à l’article
263, quatrième alinéa, TFUE doivent être interprétées à la lumière du droit fondamental à une protection juridictionnelle
effective, cette interprétation ne saurait toutefois aboutir à écarter ces conditions (voir, en ce sens, arrêt T & L Sugars
et Sidul Açúcares/Commission, C‑456/13 P, EU:C:2015:284, point 44 ainsi que jurisprudence citée).
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38. According to the applicants in the main proceedings, the mandatory nature of those time-limits is also confirmed by the Court’s case-law in relation both to the additional levy on milk (Case C-292/97 Karlsson [2000] ECR I-2737, paragraph 32, and Case C-356/97 Molkereigenossenscahft Wiedergelingen [2000] ECR I-5461, paragraphs 38, 40 and 41) and to sugar (Case C-1/94 Cavarzere Produzioni Industriali and Others [1995] ECR I-2363).
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41 Although the 15 May deadline must be observed for the smooth operation of the scheme so as to ensure the punctual payment of those sums, it cannot be concluded that observance of that deadline is absolutely indispensable to its smooth operation, since a slight delay, such as that with which the main proceedings are concerned, would not jeopardise payment of the additional levy on milk before 1 September.
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48. Chapter II of Directive 95/46, entitled ‘General rules on the lawfulness of the processing of personal data’, provides that, subject to the exceptions permitted under Article 13, all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6 of the directive and, secondly, with one of the criteria for making data processing legitimate listed in Article 7 (see, to that effect, Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others [2003] ECR I‑4989, paragraph 65).
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11 The Court of Justice has consistently held that the formalities prescribed by Articles 4 and 29 of the Staff Regulations do not apply when an official is re-assigned with his post because such a transfer does not give rise to a vacant post (see Joined Cases 161 and 162/80 Carbognani and Coda Zabetta v Commission [1981] ECR 543, paragraph 19). Contrary to the appellant' s contention, the rotation procedure does not involve a transfer within the meaning of the Staff Regulations, even if the terminology employed by the Commission is occasionally inappropriate (paragraph 20 of Carbognani).
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19 WITHIN THE GENERAL SCHEME OF THE STAFF REGULATIONS THERE IS A TRANSFER IN THE STRICT SENSE OF THE TERM ONLY WHEN AN OFFICIAL IS TRANSFERRED TO A VACANT POST . IT FOLLOWS THAT ANY TRANSFER , PROPERLY SO-CALLED , IS SUBJECT TO THE FORMALITIES PRESCRIBED BY ARTICLES 4 AND 29 OF THE STAFF REGULATIONS . HOWEVER , THOSE FORMALITIES DO NOT APPLY WHEN AN OFFICIAL IS RE-ASSIGNED WITH HIS POST BECAUSE SUCH A TRANSFER DOES NOT GIVE RISE TO A VACANT POST .
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123. It must be recalled that as Community law stands at present, direct taxation falls within the competence of the Member States, although it is settled case‑law that they must exercise that competence consistently with Community law (see, in particular, Case C-391/97 Gschwind [1999] ECR I-5451, paragraph 20) and therefore avoid taking, in that context, any measures capable of constituting State aid incompatible with the common market.
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41. It must also be borne in mind that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see Case C‑8/95 P New Holland Ford v Commission [1998] ECR I‑3175, paragraph 72; Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 54; and Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 108).
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108. It should also be noted that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence ( General Motors v Commission , paragraph 54).
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47
While the legislation at issue in the present case applies both to Cypriot civil servants choosing to resign in order to work in the private sector in their Member State of origin and to those resigning and leaving that Member State in order to work in another Member State, within an EU institution or other international organisation, the fact remains that that legislation may restrict the freedom of movement of the latter category of civil servants preventing or deterring them from leaving their Member State of origin to take up employment in another Member State, within an EU institution or in another international organisation. Such legislation directly affects the access of Cypriot civil servants to the employment market in Member States other than the Republic of Cyprus and is thus capable of impeding freedom of movement for workers (see, to that effect, judgment in Bosman, C‑415/93, EU:C:1995:463, paragraphs 98 to 100 and 103).
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28 It also noted (at paragraph 108) that where, by reason of an obligation assumed under the GATT or of a concession relating to a preference, some producers suffered or were threatened with serious damage, Article XIX gave a contracting party power unilaterally to suspend the obligation and to withdraw or modify the concession, either after consulting the contracting parties jointly and failing agreement between the contracting parties concerned, or even, if the matter was urgent and on a temporary basis, without prior consultation (see the judgments in Joined Cases 21/72 to 24/72 International Fruit Company, cited above, paragraphs 21, 25 and 26; Case 9/73 Schlueter v Hauptzollamt Loerrach [1973] ECR 1135, paragraph 29; Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731, paragraph 28; and Joined Cases 267/81, 268/81 and 269/81 SPI and SAMI [1983] ECR 801, paragraph 23).
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28 SINCE THAT PROVISION CANNOT HAVE DIRECT EFFECT IN THE FRAMEWORK OF COMMUNITY LAW FOR THE REASONS WHICH WERE STATED BY THE COURT IN ITS JUDGMENT OF 12 DECEMBER 1972 IN JOINED CASES 21 TO 24/72 , INTERNATIONAL FRUIT COMPANY V PRODUKTSCHAP VOOR GROENTEN EN FRUIT , ( 1972 ) ECR 1219 , AND WHICH ARE STILL VALID , INDIVIDUALS MAY NOT RELY UPON IT IN ORDER TO CHALLENGE THE IMPOSITION OF A CHARGE SUCH AS THE LOADING AND UNLOADING CHARGE ON GOODS IN TRANSIT TO AUSTRIA . THAT IN NO WAY AFFECTS THE COMMUNITY ' S OBLIGATION TO ENSURE THAT THE PROVISIONS OF GATT ARE OBSERVED IN ITS RELATIONS WITH NON-MEMBER STATES WHICH ARE PARTIES TO GATT .
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61. It is important to observe in that regard that neither the scale of a share sale, nor the employment in connection with such a sale of consultancy undertakings, can constitute criteria for distinguishing between the activities of a private investor, which fall outside the scope of the Sixth Directive, and those of an investor whose transactions constitute an economic activity (see Wellcome Trust , paragraph 37).
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39
In that regard, it should be recalled that it is settled case-law that all the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the European Union, and preclude measures which might place such nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State. In that context, nationals of the Member States have in particular the right, which they derive directly from the Treaty, to leave their State of origin to enter the territory of another Member State and reside there in order there to pursue an economic activity (see, in particular, judgments in Ritter-Coulais, C‑152/03, EU:C:2006:123, paragraph 33; Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 44; Casteels, C‑379/09, EU:C:2011:131, paragraph 21; and Las, C‑202/11, EU:C:2013:239, paragraph 19).
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33. Moreover, it is settled case-law that all of the Treaty provisions relating to the freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Case C‑370/90 Singh [1992] ECR I-4265, paragraph 16, Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 37; Case C-190/98 Graf [2000] ECR I-493, paragraph 21; Case C-302/98 Sehrer [2000] ECR I‑4585, paragraph 32, and Schilling and Fleck-Schilling , cited above, paragraph 24).
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53 Thus the appellants ° who were, by force of circumstance, the only sources of the basic information on programme scheduling which is the indispensable raw material for compiling a weekly television guide ° gave viewers wishing to obtain information on the choice of programmes for the week ahead no choice but to buy the weekly guides for each station and draw from each of them the information they needed to make comparisons.
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46. It must be observed, however, that, in so far as it requires the acquirer to produce proof of the future use of the land he is acquiring, a measure such as Paragraph 8(3) of the VGVG allows the competent administrative authority considerable latitude which may be akin to a discretionary power (see, to that effect, Konle , paragraph 41).
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41 As to the first condition, it is not possible for the person seeking authorisation to provide incontrovertible proof of the future use of the land to be acquired. The administrative authorities thus have, in determining the probative value of the information received, considerable latitude which is closely related to a discretionary power. Furthermore, the explanatory memoranda drawn up by the administrative authorities of the Land of Tyrol on Section 25 of the TGVG 1996, which were produced by the applicant in the main proceedings and the significance of which for the interpretation of the Law has been accepted by the Republic of Austria, reveal the intention of using the means of assessment offered by the authorisation procedure in order to subject applications from foreigners, including nationals of Member States of the Community, to a more thorough check than applications from Austrian nationals. In addition, the accelerated authorisation procedure laid down in Section 25(2) is presented in that document as designed to replace the declaration procedure laid down in Section 10(2) of the TGVG 1993 and reserved for Austrians alone.
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62. It follows from Article 18(3) of Regulation No 1386/2002, which refers expressly to Article H(2) of Annex II to Regulation No 1164/94, as amended, that the Commission has, by virtue of Article H(2), a three-month period to take a decision on financial corrections, and that period begins to run from the date of the hearing.
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45. However, the effects, within the EU legal order, of provisions of an agreement concluded by the European Union with non-member States may not be determined without taking account of the international origin of those provisions. In conformity with the principles of international law, EU institutions which have power to negotiate and conclude such an agreement are free to agree with the non-member States concerned what effects the provisions of the agreement are to have in the internal legal order of the contracting parties. If that question has not been expressly dealt with in the agreement, it is for the courts having jurisdiction in the matter and in particular the Court of Justice, within the framework of its jurisdiction under the FEU Treaty, to decide it, in the same manner as any other question of interpretation relating to the application of the agreement in question in the European Union on the basis in particular of the agreement’s spirit, general scheme or terms (see judgment in FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 108 and the case-law cited).
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108. It is to be observed in that regard that the effects within the Community of provisions of an agreement concluded by the Community with non-member States may not be determined without taking account of the international origin of the provisions in question. In conformity with the principles of public international law, Community institutions which have power to negotiate and conclude such an agreement are free to agree with the non-member States concerned what effect the provisions of the agreement are to have in the internal legal order of the contracting parties. If that question has not been expressly dealt with in the agreement, it is the courts having jurisdiction in the matter and in particular the Court of Justice within the framework of its jurisdiction under the EC Treaty that have the task of deciding it, in the same manner as any other question of interpretation relating to the application of the agreement in question in the Community (see, in particular, Case 104/81 Kupferberg [1982] ECR 3641, paragraph 17, and Portugal v Council , paragraph 34), on the basis in particular of the agreement’s spirit, general scheme or terms (see, to this effect, Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraph 110).
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94. That recital indicates the Commission's choice as to the addressee of the contested decision but contains no reasons whatsoever for that decision.
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48. That last measure was specifically examined in Sturgeon and Others , in which the Court stated, first, that loss of time constitutes an inconvenience covered by Regulation No 261/2004, like the other inconveniences which the measures laid down by that regulation must redress. Second, it found that that inconvenience must be redressed by means of compensating the passengers concerned pursuant to that regulation (see, to that effect, Sturgeon and Others , paragraphs 52 and 61).
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61. In those circumstances, the Court finds that passengers whose flights are delayed may rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.
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113. In that regard, it is apparent from the Court’s case-law that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 49 and the case-law cited).
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69. En effet, le Tribunal a tout d’abord rappelé, au point 83 de l’arrêt attaqué, qu’il incombe à l’opérateur, dès lors que celui-ci a des doutes quant à l’application exacte des dispositions dont l’inexécution peut faire naître une dette douanière, de s’informer et de rechercher tous les éclaircissements possibles pour ne pas contrevenir aux dispositions visées (arrêts Söhl & Söhlke, EU:C:1999:548, point 58, et Common Market Fertilizers/Commission, C‑443/05 P, EU:C:2007:511, point 191).
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58 As regards the care taken by the trader, it must be noted that, where doubts exist as to the exact application of the provisions non-compliance with which may result in a customs debt being incurred, the onus is on the trader to make inquiries and seek all possible clarification to ensure that he does not infringe those provisions.
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91. It is thus understood that the public which is the subject of the communication is both targeted by the user and receptive, in one way or another, to that communication, and not merely ‘caught’ by chance.
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37 However, national rules would be incompatible with the Treaty and with the rules on the common organisation of markets if they authorised practices liable to interfere with the functioning of the machinery employed by those organisations in order to achieve their ends (see, to that effect, Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association v Ireland [1981] ECR 735, paragraph 15, and Case 218/85 Cerafel v Le Campion [1986] ECR 3513, paragraph 13).
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13 IN ORDER TO REPLY TO THE QUESTION RAISED BY THE NATIONAL COURT IT IS THEREFORE NECESSARY TO ASCERTAIN WHETHER AND TO WHAT EXTENT REGULATION NO 1035/72 PRECLUDES THE EXTENSION OF RULES ESTABLISHED BY PRODUCERS ' ORGANIZATIONS TO PRODUCERS WHO ARE NOT MEMBERS , EITHER BECAUSE THE EXTENSION OF THOSE RULES AFFECTS A MATTER WITH WHICH THE COMMON ORGANIZATION OF THE MARKET HAS DEALT EXHAUSTIVELY OR BECAUSE THE RULES SO EXTENDED ARE CONTRARY TO THE PROVISIONS OF COMMUNITY LAW OR INTERFERE WITH THE PROPER FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET .
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24 To prohibit a Member State which has set different retirement ages for men and women from adopting or subsequently amending, after expiry of the period prescribed for transposition of the Directive, measures linked to that age difference would be tantamount to depriving the derogation for which Article 7(1)(a) of the Directive provides of its practical effect (see Hepple, paragraph 24).
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69. 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 public interest (see, to this effect, judgments in Lenz , C‑315/02, EU:C:2004:446, paragraphs 20 to 49; Manninen , C‑319/02, EU:C:2004:484, paragraphs 20 to 55; and Test Claimants in the FII Group Litigation , EU:C:2006:774, paragraph 46).
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46. Second, exemption from tax of dividends paid by a resident company and application to dividends paid by a non-resident company of an imputation method which, like that laid down in the rules at issue in the main proceedings, takes account of the effective level of taxation of the profits in the State of origin also cease to be equivalent if the profits of the resident company which pays dividends are subject in the Member State of residence to an effective level of taxation lower than the nominal rate of tax which is applicable there.
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28. However, such national legislation does not bring about a reversal of the burden of proof, which is for the victim to discharge, and does not introduce any change in the circumstances, listed in Article 7 of Directive 85/374, in which the manufacturer is to be exempt from liability.
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39 It should first be recalled that the scope of Article 30 does not extend to the obstacles to trade covered by other specific provisions of the Treaty, and that obstacles of a fiscal nature or having an effect equivalent to customs duties, which are covered by Articles 9 and 12 of the EC Treaty (now, after amendment, Articles 23 EC and 25 EC) and Article 95 of the Treaty, do not fall within the prohibition laid down in Article 30 (see Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest and Others v Receveur Principal des Douanes de La Pallice-Port [1992] ECR I-1847, paragraph 20).
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20 The Court has consistently held (see, in particular, the judgment in Case 74/76 Ianelli and Volpi [1977] ECR 557) that the scope of Article 30 does not extend to the obstacles covered by other, specific provisions of the Treaty and that the obstacles which are of a fiscal nature or have an effect equivalent to customs duties and are covered by Articles 9 to 16 and 95 of the Treaty do not fall within the prohibition laid down in Article 30.
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15
By an award decision of 14 March 2014, notified to Vamed, the BOKU Wien accepted its bid. The framework contract was subsequently concluded and Vamed began to perform the services concerned.
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35. It is, however, to be remembered that, in accordance with settled case-law, the subject-matter of an action under Article 226 EC for failure to fulfil obligations is also delimited by the pre-litigation procedure provided for by that provision, so that the application must be based on the same grounds and pleas as the reasoned opinion (see, inter alia, Case C-96/95 Commission v Germany [1997] ECR I-1653, paragraph 23, Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 11, and Case C-287/00 Commission v Germany [2002] ECR I-5811, paragraph 18).
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18 It follows, first, that the subject-matter of the proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision. Accordingly, the application must be based on the same grounds and pleas as the reasoned opinion (see, in particular, Commission v Italy, cited above, paragraph 11).
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48. It is established that the helicopters in question, as the Italian Republic admits, are certainly for civilian use and possibly for military use.
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79. The Court has thus held that concept is one of Community law and must accordingly be given an autonomous and uniform interpretation throughout the Community, the search for which must take account of the background to the provision in which it appears and of the purpose of the rules in question (see, to that effect, Adolf Truley , paragraphs 36, 40 and 45).
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45. In light of the foregoing, the answer to the first limb of the first question must be that the term "needs in the general interest" in the second subparagraph of Article 1(b) of Directive 93/36 is an autonomous concept of Community law.
The second limb of the first question
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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It must also be stated that, according to the case-law of the Court of Justice, the right to be heard prior to the adoption
of acts which maintain restrictive measures against persons already subject to those measures applies where the Council has
admitted new evidence against those persons and not where those measures are maintained on the basis of the same grounds as
those that justified the adoption of the initial act imposing the restrictive measures in question (see, to that effect, judgment
of 21 December 2011 in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 63).
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63. In the judgment under appeal, the General Court applied those principles to the facts of the case and rightly concluded that, given that the PMOI’s name had been maintained, by the contested decision, in the list referred to in Article 2(3) of Regulation No 2580/2001, a list in which it had appeared ever since its original inclusion on 3 May 2002 pursuant to Decision 2002/334, the Council might not, as it did in that case, communicate the new incriminating evidence against the PMOI at the same time as it adopted the contested decision. The Council was bound, imperatively, to ensure that the PMOI’s rights of defence were observed, that is to say, notification of the incriminating evidence against it and the right to be heard, before that decision was adopted.
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19 It is therefore necessary to determine the guarantee institution responsible for paying claims where the employer is established in a Member State other than that of the employee's place of residence or employment.
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18
More specifically, as regards Article 5(1) of Regulation No 1346/2000, which stipulates that the opening of insolvency proceedings has no effect on the right in rem of a creditor or a third party over the debtor’s assets which are located at the time the proceedings were opened in the territory of another Member State, it is clear from the case-law of the Court that the basis, validity and extent of such a right in rem must normally be determined according to the law of the place where the asset concerned is situated. As a consequence, Article 5(1) of that regulation, by derogating from the rule of the law of the Member State of the opening of the proceedings, allows the law of the Member State on whose territory the asset concerned is situated to be applied to the right in rem of a creditor or a third party in respect of certain assets belonging to the debtor (see, to that effect, judgments of 5 July 2012, ERSTE Bank Hungary, C‑527/10, EU:C:2012:417, paragraphs 40 to 42, and of 16 April 2015, Lutz, C‑557/13, EU:C:2015:227, paragraph 27).
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40. Thus, as regards rights in rem, Article 5(1) of the Regulation states that the opening of insolvency proceedings does not affect the rights in rem of creditors or third parties in respect of assets belonging to the debtor which are situated within the territory of another Member State at the time of the opening of proceedings.
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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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67
The Court has repeatedly held that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any control by the EU institutions. It follows therefrom that public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see judgments of 14 October 2004 in Omega, C‑36/02, EU:C:2004:614, paragraph 30 and the case-law cited, and of 22 December 2010 in Sayn-Wittgenstein, C‑208/09, EU:C:2010:806, paragraph 86).
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86. The Court has repeatedly noted that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any control by the European Union institutions (see Case C-36/02 Omega [2004] ECR I‑9609, paragraph 30, and Case C-33/07 Jipa [2008] ECR I‑5157, paragraph 23). Thus, public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see Omega , paragraph 30 and the case‑law cited).
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60. In addition to the anticipated benefit from a horizontal price-fixing agreement when sales are made to independent third parties, vertically integrated undertakings may also benefit from such an agreement on the downstream market in processed goods made up of, inter alia, the goods which are the subject of the infringement. This is so for two different reasons: either those undertakings pass on the price increases in the inputs as a result of the infringement in the price of the processed goods, or they do not pass those increases on, which thus effectively grants them a cost advantage in relation to their competitors which obtain those same inputs on the market for the goods which are the subject of the infringement.
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35. That interpretation is consistent with case-law holding that the right to deduct provided for in Article 17 et seq. of the Sixth Directive, which is an integral part of the VAT system and may not in principle be limited, must be exercised immediately in respect of all the taxes charged on transactions relating to inputs (see, inter alia, Case C-97/90 Lennartz [1991] ECR I-3795, paragraph 27, and Case C-409/99 Metropol and Stadler [2002] ECR I-81, paragraph 42). The exercise of that right assumes that, in principle, taxable persons do not make payment and therefore do not pay input VAT until they have received an invoice, or another document which may be considered to serve as an invoice, and that the VAT cannot be regarded as being chargeable on a given transaction before it has been paid.
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42 Second, according to the fundamental principle which underlies the VAT system and which follows from Article 2 of the First and Sixth Directives, VAT applies to each transaction by way of production or distribution after deduction has been made of the VAT which has been levied directly on transactions relating to inputs. It is settled case-law that the right of deduction provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and in principle may not be limited. That right must be exercised immediately in respect of all the taxes charged on input transactions. Any limitation on the right to deduct VAT affects the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for in the Sixth Directive (see, inter alia, Joined Cases C-177/99 and C-181/99 Ampafrance and Sanofi [2000] ECR I-7013, paragraph 34 and the case-law cited therein).
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26. That particular intended use, which is inherent in the objective characteristics of the components with which the machine in question in the main proceedings is equipped, supports the argument that the machine fulfils a specific function other than automatic data processing.
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13. According to settled case-law, national provisions which apply to holdings by nationals of the Member State concerned in the capital of a company established in another Member State, giving them definite influence on the company’s decisions and allowing them to determine its activities, come within the substantive scope of the provisions of the EC Treaty on freedom of establishment (see, inter alia, Case C‑251/98 Baars [2000] ECR I-2787, paragraph 22; Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 31; and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑0000, paragraph 27).
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27. In accordance with settled case-law, national provisions which apply to holdings by nationals of the Member State concerned in the capital of a company established in another Member State, giving them definite influence on the company’s decisions and allowing them to determine its activities, come within the substantive scope of the provisions of the EC Treaty on freedom of establishment (see, to that effect, Case C‑251/98 Baars [2000] ECR I-2787, paragraph 22; Case C-436/00 X and Y [2002] ECR I-10829, paragraph 37; and Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-0000, paragraph 31).
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86
That the right guaranteed by Article 4 of the Charter is absolute is confirmed by Article 3 ECHR, to which Article 4 of the Charter corresponds. As is stated in Article 15(2) ECHR, no derogation is possible from Article 3 ECHR.
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63
A broad interpretation of that kind is, moreover, in keeping with the objective of Directive 2006/123 which, as is clear from recitals 2 and 5 thereof, is intended to remove restrictions on the freedom of establishment for providers in the Member States and on the free movement of services between Member States, in order to contribute to the completion of a free and competitive internal market (see, inter alia, judgment in Société fiduciaire nationale d’expertise comptable, C‑119/09, EU:C:2011:208, paragraph 26). Indeed, legislation of a Member State which requires a provider to have a particular legal form or status constitutes a significant restriction on the freedom of establishment of providers and on the freedom to provide services (see to that effect, inter alia, judgments in Commission v Italy, C‑439/99, EU:C:2002:14, paragraph 32, and Commission v Portugal, C‑171/02, EU:C:2004:270, paragraphs 41 and 42).
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42. In addition, such a condition constitutes a restriction within the meaning of Article 43 EC, since it prevents Community operators that are natural persons from setting up a secondary establishment in Portugal (see, to that effect, Case 107/83 Klopp [1984] ECR 2971, paragraph 19, and Case 143/87 Stanton [1988] ECR 3877, paragraph 11).
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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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61. Nor is there any indication that the fact that the Commission did not inform Dalmine during the investigation stage that it was in possession of the minutes might have an impact on Dalmine’s subsequent possibilities of defending itself during the administrative procedure initiated by the notification of the statement of objections (see, by analogy, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , paragraphs 48 to 50 and 56).
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49. The excessive duration of the first phase of the administrative procedure may have an effect on the future ability of the undertakings concerned to defend themselves, in particular by reducing the effectiveness of the rights of the defence in the second phase of the procedure. In effect, as the Advocate General observes at point 129 of her Opinion, the more time that elapses between a measure of investigation such as, in the present case, the sending of the warning letter and the notification of the statement of objections, the more unlikely it becomes that exculpatory evidence relating to the infringements set out in the statement of objections can be obtained, owing in particular to the changes that may have come about in the composition of the managing boards of the undertakings concerned and to the movements affecting their other staff. In its analysis of the reasonable time principle, the Court of First Instance did not have sufficient regard to that aspect of observance of the principle.
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20 UNE DISPOSITION QUI , COMME L ' ARTICLE 53 , PARAGRAPHE 2 , DU SEX DISCRIMINATION ORDER , CONFERE A LA PRESENTATION D ' UN CERTIFICAT TEL QUE CELUI LITIGIEUX EN L ' ESPECE UN EFFET DE PREUVE IRREFRAGABLE QUE LES CONDITIONS D ' UNE DEROGATION AU PRINCIPE D ' EGALITE DE TRAITEMENT SONT REMPLIES PERMET A L ' AUTORITE COMPETENTE DE PRIVER LE PARTICU LIER DE LA POSSIBILITE DE FAIRE VALOIR , PAR VOIE JURIDICTIONNELLE , LES DROITS RECONNUS PAR LA DIRECTIVE . UNE TELLE DISPOSITION EST DONC CONTRAIRE AU PRINCIPE D ' UN CONTROLE JURIDICTIONNEL EFFECTIF CONSACRE PAR L ' ARTICLE 6 DE LA DIRECTIVE .
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58. In that regard, it follows from the case-law of the Court of Justice that, in any event, an appeal must necessarily have suspensory effect when it is brought against a return decision whose enforcement may expose the third-country national concerned to a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, thereby ensuring that the requirements of Articles 19(2) and 47 of the Charter are met in respect of that third-country national (see, to that effect, judgment in Abdida , C‑562/13, EU:C:2014:2453, paragraphs 52 and 53).
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52. Indeed, the European Court of Human Rights has held that, when a State decides to return a foreign national to a country where, there are substantial grounds for believing, he will be exposed to a real risk of ill-treatment contrary to Article 3 ECHR, the right to an effective remedy provided for in Article 13 ECHR requires that a remedy enabling suspension of enforcement of the measure authorising removal should, ipso jure , be available to the persons concerned (see, inter alia, European Court of Human Rights, judgments in Gebremedhin [Gaberamadhien] v. France , no. 25389/05, § 67, ECHR 2007-II, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012).
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33 As the Commission appositely pointed out, if such activities do not in themselves constitute an economic activity within the meaning of the Directive, the same must be true of activities consisting in the sale of such holdings.
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28. Where those provisions make the application of an allowance against the taxable value of the immovable property concerned dependent on the place of residence of the donor and the donee on the date of the gift, the greater tax burden on the gift between non-residents constitutes a restriction on the free movement of capital (see, by analogy, Eckelkamp and Others , paragraph 46).
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46. Where those rules make the deductibility of certain debts secured on the immovable property in question dependent on the place where, at the time of death, the person whose estate is being administered was residing, the greater tax burden to which the inheritance of non-residents is consequently subject constitutes a restriction on the free movement of capital.
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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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51. In that regard, as it pointed out in Danner in paragraph 55, the Court held in paragraph 34 of its judgment in Safir that, in that case, the need to fill the fiscal vacuum arising from the non-taxation of savings in the form of capital life assurance policies taken out with companies established in a Member State other than the one where the saver is resident was not such as to justify the national measure at issue, which restricted freedom to provide services.
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55 In that regard it should be recalled that, contrary to the Danish Government's assertion, the Court has held, in paragraph 34 of Safir, that the need to fill the fiscal vacuum arising from the non-taxation of savings in the form of capital life assurance policies taken out with companies established in a Member State other than the one where the saver is resident was not such as to justify the national measure at issue, which restricted freedom to provide services.
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47. Second, the exact scope of ‘main subject-matter’ and ‘price’ within the meaning of Article 4(2) of Directive 93/13 cannot be determined by the concept of ‘the total cost of the credit to the consumer’ within the meaning of Article 3(g) of Directive 2008/48.
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49
In that regard, it should be borne in mind, as the General Court correctly did in paragraph 328 of the judgment under appeal, that the maximum amount laid down in Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, which now corresponds to Article 101 TFEU (see judgments of 8 May 2013 in Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 109; of 11 July 2013 in Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraphs 172 and 173; and of 26 November 2013 in Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraph 56). The proportionality of a fine must in particular be assessed having regard to the objective of deterrence which is sought by its imposition and consideration of that total figure is therefore necessary for the purposes of that assessment in order to take into account the economic power of that entity (see, to that effect, judgment of 20 January 2016 in Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraphs 83 and 84).
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56. In those circumstances, the General Court did not err in law in holding, in paragraphs 108 and 110 of the judgment under appeal, that the Commission had been fully entitled to calculate the upper limit of the amount of the fine imposed on the appellant on the basis of the combined turnover of all the companies belonging to the group headed by it.
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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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66. Il convient de rappeler que les autorités nationales compétentes sont tenues, en ce qui concerne les opérations de stockage temporaire, de veiller au respect des obligations résultant de l’article 13 de la directive 2008/98, qui prévoit que les États membres prennent les mesures nécessaires pour assurer que les déchets seront valorisés ou éliminés sans mettre en danger la santé de l’homme et sans que soient utilisés des procédés ou des méthodes susceptibles de porter préjudice à l’environnement. Dans la mesure où les déchets, même stockés temporairement, peuvent causer des dommages importants à l’environnement, il y a lieu en effet de considérer que les dispositions des articles 13 et 36, paragraphe 1, de cette directive visent à mettre en œuvre le principe de précaution, et sont également applicables à l’opération de stockage temporaire (voir, en ce sens, arrêt Commission/Grèce, C‑286/08, EU:C:2009:543, point 72 et jurisprudence citée).
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72. Il convient de rappeler que les autorités nationales compétentes sont tenues, en ce qui concerne les opérations de stockage temporaire, de veiller au respect des obligations résultant de l’article 4 de la directive 2006/12, qui prévoit, à son paragraphe 1, que les États membres prennent les mesures nécessaires pour assurer que les déchets seront valorisés ou éliminés sans mettre en danger la santé de l’homme et sans que soient utilisés des procédés ou des méthodes susceptibles de porter préjudice à l’environnement. Dans la mesure où les déchets, même stockés temporairement, peuvent causer des dommages importants à l’environnement, il y a lieu en effet de considérer que les dispositions de cet article 4, qui visent à mettre en œuvre le principe de précaution, sont également applicables à l’opération de stockage temporaire (voir, en ce sens, arrêts du 5 octobre 1999, Lirussi et Bizzaro, C-175/98 et C‑177/98, Rec. p. I-6881, point 53, ainsi que du 11 décembre 2008, MI.VER et Antonelli, C-387/07, non encore publié au Recueil, point 24).
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31 IN THOSE CIRCUMSTANCES IT MUST BE CONCLUDED THAT THE COMMISSION WAS IN A POSITION TO OBTAIN SUFFICIENTLY EXACT INFORMATION ON THE CONTRACTS ALREADY ENTERED INTO WHICH WERE TO BE PERFORMED DURING THE PERIOD OF APPLICATION OF THE DECISION AT ISSUE . IT FOLLOWS THAT THE UNDERTAKINGS WHICH WERE PARTY TO CONTRACTS MEETING THAT DESCRIPTION MUST BE CONSIDERED AS INDIVIDUALLY CONCERNED FOR THE PURPOSE OF THE ADMISSIBILITY OF THIS ACTION , AS MEMBERS OF A LIMITED CLASS OF TRADERS IDENTIFIED OR IDENTIFIABLE BY THE COMMISSION AND BY REASON OF THOSE CONTRACTS PARTICULARLY AFFECTED BY THE DECISION AT ISSUE .
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107
It should be noted, however, that where the Court rules, in proceedings under Article 267 TFEU, that a measure adopted by an EU authority is invalid, its decision has the legal effect of requiring the competent EU institutions to take the necessary measures to remedy that illegality (see, to that effect, judgment in Régie Networks, C‑333/07, EU:C:2008:764, paragraph 124).
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124. Next, where the Court rules, in proceedings under Article 234 EC, that a measure adopted by a Community authority is invalid, its decision has the legal effect of requiring the competent Community institutions to take the necessary measures to remedy that illegality, as the obligation laid down in Article 233 EC in the case of a judgment annulling a measure applies in such a situation by analogy (see, inter alia, Joined Cases C‑120/06 P and C-121/06 P FIAMM and Others v Council and Commission [2008] ECR I-0000, paragraph 123 and the case‑law cited).
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42. À cet égard, il convient de souligner que, eu égard au caractère massif des importations de marchandises dans l’Union, un contrôle approfondi, qu’il soit physique ou documentaire, de toutes les importations de marchandises déclarées, sans exception, n’est pas économiquement praticable. Dès lors, l’article 68 du code des douanes se limite à prévoir, dans ce contexte, que les autorités douanières compétentes «peuvent» procéder à des contrôles. De même, en vertu de l’article 73, paragraphe 1, de ce code, ces autorités octroient la mainlevée de marchandises faisant l’objet d’une déclaration en douane dès que les énonciations de cette déclaration ont été vérifiées «ou admises sans vérification». Lesdites autorités ne sont donc en principe pas tenues d’effectuer, dans tous les cas, de tels contrôles (voir, en ce sens, arrêt Südzucker e.a., C‑608/10, C‑10/11 et C‑23/11, EU:C:2012:444, point 42).
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14 Il convient, en pareille hypothèse, pour déterminer la base juridique appropriée, d'apprécier si les mesures considérées se rattachent principalement à un domaine d'action, les effets sur d'autres politiques ne présentant qu'un caractère accessoire, ou si les deux aspects sont également essentiels. Dans le premier cas, le recours à une seule base juridique suffit (arrêts du 4 octobre 1991, Parlement/Conseil, 70/88, Rec. p. I-4529, point 17, et du 26 mars 1996, Parlement/Conseil, C-271/94, Rec. p. I-1689, points 32 et 33); dans l'autre, il est insuffisant (arrêts du 30 mai 1989, Commission/Conseil, 242/87, Rec. p. 1425, points 33 à 37, et du 7 mars 1996, Parlement/Conseil, C-360/93, Rec. p. I-1195, point 30) et l'institution est tenue d'adopter l'acte sur le fondement des deux dispositions qui fondent sa compétence (arrêt du 27 septembre 1988, Commission/Conseil, 165/87, Rec. p. 5545, points 6 à 13). Un tel cumul est toutefois exclu lorsque les procédures prévues pour l'une et l'autre base juridique sont incompatibles (arrêt du 11 juin 1991, Commission/Conseil, C-300/89, Rec. p. I-2867, points 17 à 21).
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6 In order to rule on the merits of the Commission' s action it is necessary to consider the Council' s power to adopt the contested decision, taking into account the two aspects covered by the Convention, namely tariff nomenclature on the one hand and statistical nomenclature on the other .
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31. Concerning Article 41(1) of the Additional Protocol, it must be stated that, as is apparent from its very wording, it formulates, in clear, precise and unconditional terms, an unequivocal standstill clause, which prohibits the Contracting Parties from introducing new restrictions on freedom of establishment and freedom to provide services with effect from the date of entry into force of the Additional Protocol (see judgment in Demirkan , EU:C:2013:583, paragraph 37).
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86. There is however nothing to prevent the national legislature, when adopting a project, from using information gathered as part of an earlier administrative procedure and the EIA produced in that connection, provided that the EIA is based on information and knowledge that are not out of date. The EIA, which must be carried out before the decision-making process, involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data (see Case C-50/09 Commission v Ireland [2011] ECR I-873, paragraph 40).
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40. However, that obligation to take into consideration, at the conclusion of the decision-making process, information gathered by the competent environmental authority must not be confused with the assessment obligation laid down in Article 3 of Directive 85/337. Indeed, that assessment, which must be carried out before the decision-making process (Case C-508/03 Commission v United Kingdom [2006] ECR I‑3969, paragraph 103), involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data. That competent environmental authority must thus undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect effects of the project concerned on the factors set out in the first three indents of Article 3 and the interaction between those factors.
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31 CONSEQUENTLY , THE EXPLANATORY NOTES DO NOT COVER A PRODUCT SUCH AS THAT DESCRIBED BY THE NATIONAL COURT , SINCE ITS COMPONENTS INCLUDE A VIDEO RECORDER WHICH MAY BE USED INDEPENDENTLY OF THE TIMER/TUNER AND FOR FUNCTIONS OTHER THAN THOSE WHICH MAY BE PERFORMED BY THE TWO COMPONENTS TOGETHER . IT FOLLOWS THAT THE TIMER/TUNER CANNOT BE CLASSIFIED UNDER SUBHEADING 92.11 B OF THE CCT EITHER .
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21. Indeed, in certain circumstances, several formally distinct services, which could be supplied in isolation and thus give rise, separately, to taxation or exemption, must be considered to be a single transaction when they are not independent. This is particularly true where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (see, to that effect, Part Service , paragraphs 51 and 53; Case C‑572/07 RLRE Tellmer Property [2009] ECR I‑4983, paragraphs 18 and 19; and Don Bosco Onroerend Goed , paragraphs 36 and 37).
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53. It can also be held that there is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split ( Levob Verzekeringen and OV Bank , paragraph 22).
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90. However, in its orders for reference, the referring court states that, in its view, it is impossible to interpret Paragraphs 27 and 28 of the old version of the BbesG in conformity with EU law.
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26 Second, it should be borne in mind that the Court has consistently held that the rights which the three indents of Article 6(1) confer on Turkish workers in regard to employment necessarily imply the existence of a right of residence for the person concerned, since otherwise the right of access to the labour market and the right to work as an employed person would be deprived of all effect (Sevince, paragraph 29, Kus, paragraphs 29 and 30, and Bozkurt, paragraph 28).
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29 It also held, in that judgment, in the context of the third indent of Article 6(1) of Decision No 1/80 that even though that provisions governs the situation of the Turkish worker only with respect to employment and not to the right of residence, those two aspects of the personal situation of a Turkish worker are closely linked and that, by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provision in question necessarily implies ° since otherwise the right granted by it to the Turkish worker would be deprived of any effect ° the existence, at least at that time, of a right of residence for the person concerned (paragraph 29 of the judgment).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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50. That maternity leave from which the female worker benefits is intended, first, to protect a woman’s biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment (see, inter alia, Case 184/83 Hofmann [1984] ECR 3047, paragraph 25, and Kiiski , paragraph 46).
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46. It is precisely that inevitable course which the Community legislature took into account when making available to pregnant workers a special right, that is to say a right to maternity leave of the kind provided for in Directive 92/85, which is intended, first, to protect a woman's biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment (see, to that effect, Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 43; Case C-342/01 Merino Gómez [2004] ECR I‑2605, paragraph 32; and Commission v Luxembourg , paragraph 32).
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50 It is true that the prohibition in question in the main proceedings does not apply to all types of lottery, small-scale lotteries not conducted for private gain being permitted in the national territory and the prohibition being set in the more general context of the national legislation on gambling which permits certain forms of gambling similar to lotteries, such as football pools or "bingo".
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20 According to settled case-law, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the particular facts of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (see Case C-472/93 Spano and Others v Fiat Geotech and Fiat Hitachi [1995] ECR I-4321, paragraph 15, and Case C-373/95 Maso and Others v INPS and Italian Republic [1997] ECR I-4051, paragraph 26). A request for a preliminary ruling may be rejected as inadmissible only where it is plain that the interpretation or the examination of the validity of a Community rule requested by the national court has no bearing on the actual facts or subject-matter of the case before the national court (see, in particular, Case C-472/93 Spano and Others, cited above, paragraph 15, and Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 61).
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26 According to settled case-law, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the particular facts of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (see, in particular, Case C-297/94 Bruyère and Others v Belgian State [1996] ECR I-1551, paragraph 19). Only where it is quite obvious that the interpretation of Community law or examination of the validity of a Community rule sought by a national court bears no relation to the actual facts of the main action or its purpose may a reference for a preliminary ruling be held to be inadmissible (see, in particular, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61).
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56. Toutefois, selon une jurisprudence constante de la Cour, le Tribunal est seul compétent, d’une part, pour constater les faits, sauf dans le cas où une inexactitude matérielle de ses constatations résulterait des pièces du dossier qui lui ont été soumises, et, d’autre part, pour apprécier ces faits. L’appréciation des faits ne constitue donc pas, sous réserve du cas de la dénaturation des éléments de preuve qui lui ont été soumis, une question de droit soumise, comme telle, au contrôle de la Cour (voir, notamment, arrêts Versalis/Commission, C‑511/11 P, EU:C:2013:386, point 66, ainsi que Telefónica et Telefónica de España/Commission, C‑295/12 P, EU:C:2014:2062, point 84).
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28 It is true that the measures envisaged by Article 99 and the relevant procedural rules are those provided for by the domestic law of the Member State concerned for the purposes of the national trade mark. However, since the Community is a party to the TRIPs Agreement and since that agreement applies to the Community trade mark, the courts referred to in Article 99 of Regulation No 40/94, when called upon to apply national rules with a view to ordering provisional measures for the protection of rights arising under a Community trade mark, are required to do so, as far as possible, in the light of the wording and purpose of Article 50 of the TRIPs Agreement (see, by analogy, Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paragraph 9, and Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 52).
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52 When the wording of secondary Community legislation is open to more than one interpretation, preference should be given as far as possible to the interpretation which renders the provision consistent with the Treaty. Likewise, an implementing regulation must, if possible, be given an interpretation consistent with the basic regulation (see Case C-90/92 Dr Tretter v Hauptzollamt Stuttgart-Ost [1993] ECR I-3569, paragraph 11). Similarly, the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements.
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45 Consequently, the answer to Question 1(b) is that the national court may, in the absence of express measures transposing Directive 93/104, apply its domestic law to the extent to which, having regard to the characteristics of the activity of doctors in primary health care teams, that law meets the conditions laid down in Article 17 of that directive.
The concept of working time (Questions 2(a) to 2(c), 3(a), 3(b) and 4(c))
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37. In the light of that purpose, the concept of ‘re-utilisation’ as used in Article 7 of Directive 96/9 must be construed as referring to any act of making available to the public, without the consent of the database maker, the results of his investment, thus depriving him of revenue which should have enabled him to redeem the cost of the investment (see The British Horseracing Board and Others , paragraph 51). ‘Re-utilisation’ accordingly refers to any unauthorised act of distribution to the public of the contents of a protected database or a substantial part of such contents (see The British Horseracing Board and Others , paragraph 67; Case C‑545/07 Apis-Hristovich [2009] ECR I‑1627, paragraph 49; and Football Dataco and Others , paragraph 20). The nature and form of the process used are of no relevance in this respect ( Football Dataco and Others , paragraph 20).
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67. In the light of the foregoing, the seventh, eighth and ninth questions should be answered as follows:
– The terms ‘extraction’ and ‘re-utilisation’ in Article 7 of the directive must be interpreted as referring to any unauthorised act of appropriation and distribution to the public of the whole or a part of the contents of a database. Those terms do not imply direct access to the database concerned.
– The fact that the contents of a database were made accessible to the public by its maker or with his consent does not affect the right of the maker to prevent acts of extraction and/or re-utilisation of the whole or a substantial part of the contents of a database.
The first, fourth, fifth and sixth questions, concerning the terms ‘substantial part’ and ‘insubstantial part’ of the contents of a database in Article 7 of the directive
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48ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE A LAW AMENDING A LEGISLATIVE PROVISION APPLIES , SAVE AS OTHERWISE PROVIDED , TO THE FUTURE EFFECTS OF SITUATIONS WHICH AROSE UNDER THE PREVIOUS LAW .
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31. After finding that, under the Agreement, the right of establishment in the territory of a Contracting Party applies only to a self-employed person who is a national of a Member State of the European Union or of the Swiss Confederation, and that Article 1(a) of the Agreement, as an objective, explicitly grants the right of establishment on a self-employed basis only to natural persons, the Court held that it could not be argued that legal persons were granted the same right of establishment as natural persons under the Agreement (see, to that effect, Grimme , paragraphs 36, 37 and 39).
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37. It should be added that Article 16(1) of the Agreement, which refers to the application of the acquis communautaire in relations between the Contracting Parties, provides for that application only in the framework of the objectives of the Agreement. Those objectives are listed in Article 1 of the Agreement, subparagraph (a) of which explicitly grants natural persons the right of establishment on a self‑employed basis. That right is confirmed by case-law (see, to that effect, Case C‑13/08 Stamm and Hauser , ECR [2009] I-0000, paragraph 44). By contrast, the grant of such a right to a legal person is not among the objectives pursued by the Agreement.
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27 Thus, whereas the option made available to Member States under point 4(a) of Chapter I of the Annex to the Directive of increasing the standard levels of fees offers them the possibility of derogating from Community levels in respect of particular establishments and subject to certain conditions open to judicial review, the option made available under point 4(b) of collecting a special fee covering actual costs is one which they may exercise generally and at their own discretion, provided only that the fee does not exceed the actual costs incurred.
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38. On the other hand, the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, to that effect, Case 268/83 Rompelman [1985] ECR 655, paragraph 19; Case C-37/95 Belgian State v Ghent Coal Terminal [1998] ECR I-1, paragraph 15; Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 44; Midland Bank , cited above, paragraph 19, and Abbey National, cited above, paragraph 24).
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15 With regard to the first part of this question, the Court has stated repeatedly that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of value added tax consequently ensures that all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT, are taxed in a wholly neutral way (see in particular Case 268/83 Rompelman v Minister van Financiën [1985] ECR 655, paragraph 19, and Case 50/87 Commission v France [1988] ECR 4797, paragraph 15).
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74. The broad and unambiguous wording of the provisions referred to in paragraphs 71 and 73 above confirms that Article 2(1)(b) of Regulation No 2580/2001 encompasses acts such as those referred to in Questions 2 and 3.
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23. Articles 5(6) and 6(2) of the Sixth Directive treat certain transactions for which no consideration is actually received by the taxable person as supplies of goods and provisions of services effected for consideration. The purpose of those provisions is to ensure equal treatment as between a taxable person who applies goods or services for his own private use or for that of his staff and a final consumer who acquires goods or services of the same type (see Case C‑230/94 Enkler [1996] ECR I‑4517, paragraph 35; Fillibeck , cited above, par agraph 25; and Fischer and Brandenstein , cited above, paragraph 56). In pursuit of that objective, Articles 5(6) and 6(2)(a) prevent a taxable person who has been able to deduct VAT on the purchase of goods used for his business from escaping payment of that tax when he applies those goods from his business for his own private use or that of his staff and from thereby enjoying advantages to which he is not entitled by comparison with an ordinary consumer who buys goods and pays VAT on them (see Case C‑20/91 De Jong [1992] ECR I‑2847, paragraph 15; Enkler , cited above, paragraph 33; Bakcsi , cited above, paragraph 42; and Fischer and Brandenstein , paragraph 56). Similarly, Article 6(2)(b) of the Sixth Directive prevents a taxable person or members of his staff from obtaining, free of tax, services provided by the taxable person for which a private individual would have to have paid VAT.
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35 As already pointed out in paragraph 33 above, the purpose of Article 6(2) of the Sixth Directive is to ensure equal treatment as between taxable persons and final consumers. Final consumers can use goods whenever they wish; so, in determining, in accordance with Article 11A(1)(c), the taxable amount for a transaction treated as a supply of services pursuant to Article 6(2), the periods in which goods are at the taxable person' s disposal in a way that he can actually use them at any time for private purposes must be taken into account.
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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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53. As soon, therefore, as the authorities of one Member State have issued a driving licence in accordance with Article 1(1) of Directive 91/439, the other Member Stat es are not entitled to investigate whether the conditions for issue laid down by that directive have been observed (see, to that effect, the orders in Halbritter , paragraph 34, and Kremer , paragraph 27). The possession of a driving licence issued by one Member State has to be regarded as constituting proof that, on the day that licence was issued, its holder fulfilled those conditions (see, to that effect, Commission v Netherlands , paragraph 75; the order of 11 December 2003 in Case C-408/02 Da Silva Carvalho , not published in the ECR and Kapper , paragraph 46). The fact that, in accordance with point 5 of Annex III to that directive, a Member State may require, for any issue of a driving licence, a medical examination stricter than those mentioned in that annex does not, therefore, affect that Member State’s duty to recognise driving licences issued by the other Member States in accordance with that directive.
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46. In its judgment in Commission v Netherlands , the Court has thus already expressly dismissed the possibility of a host Member State introducing systematic checks to verify that the requirement as to residence in the Member State which issued the licence, laid down in Articles 7(1)(b) and 9 of Directive 91/439, was properly complied with by the holders of driving licences issued by other Member States. At paragraph 75 of that judgment, it held, first, that it is for the authorities which issue driving licences to ensure that applicants have their normal residence in the State issuing the licence, and, secondly, that if a person holds a driving licence issued by a Member State, that should be deemed to be proof that the licence holder has satisfied the conditions for the issue of a licence provided for in Directive 91/439. Accordingly, the host Member State cannot then require the holder to prove again that he or she actually satisfied the conditions laid down in Articles 7(1)(b) and 9 of Directive 91/439, without violating the principle of the mutual recognition of driving licences.
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107. In particular, it must be found that an undertaking abuses its dominant position where, in a market the competition structure of which is already weakened by reason precisely of the presence of that undertaking, it operates a pricing policy the sole economic objective of which is to eliminate its competitors with a view, subsequently, to profiting from the reduction of the degree of competition still existing in the market.
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27
By contrast, the principle that abusive practices are prohibited, as applied in the sphere of VAT by the case-law stemming from the judgment in Halifax, is not a rule established by a directive, but is based on the settled case-law, cited in paragraphs 68 and 69 of that judgment, that, first, EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, judgments of 12 May 1998, Kefalas and Others, C‑367/96, EU:C:1998:222, paragraph 20; of 23 March 2000, Diamantis, C‑373/97, EU:C:2000:150, paragraph 33; and of 3 March 2005, Fini H, C‑32/03, EU:C:2005:128, paragraph 32) and, secondly, the application of EU legislation cannot be extended to cover abusive practices by economic operators (see to that effect, inter alia, judgments of 11 October 1977, Cremer, 125/76, EU:C:1977:148, paragraph 21; of 3 March 1993, General Milk Products, C‑8/92, EU:C:1993:82, paragraph 21; and of 14 December 2000, Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 51).
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33 However, Community law cannot be relied on for abusive or fraudulent ends (see Kefalas and Others, cited above, paragraph 20, and the case-law cited there). That would be the case if a shareholder, in reliance on Article 25(1) of the Second Directive, brought an action for the purpose of deriving, to the detriment of the company, an improper advantage, manifestly contrary to the objective of that provision (Kefalas and Others, cited above, paragraph 28).
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65. The present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other.
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25. In addition, the general principle in the system of the Convention is that the courts of the Contracting State in which the defendant is domiciled are to have jurisdiction, and that rules of jurisdiction which derogate from this general principle cannot give rise to an interpretation going beyond the cases expressly envisaged by the Convention (see, in particular, Shearson Lehman Hutton , cited above, paragraphs 14 and 16; Benincasa , cited above, paragraph 13, and Case C-412/98 Group Josi [2000] ECR I-5925, paragraph 49). This interpretation is even more compelling in relation to a rule of jurisdiction like that in Article 5(2) of the Convention, which enables the maintenance creditor to sue the defendant before the courts of the Contracting State in which the applicant is domiciled. Other than in the cases expressly provided for, the Convention appears hostile towards the attribution of jurisdiction to the courts of the applicant ' s domicile (see, to this effect, Shearson Lehman Hutton , cited above, paragraph 17; Benincasa , cited above, paragraph 14, and Group Josi , cited above, paragraph 50).
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49 Furthermore, it is settled case-law that the rules of jurisdiction which derogate from the general principle, set out in the first paragraph of Article 2 of the Convention, that the courts of the Contracting State in which the defendant is domiciled or established are to have jurisdiction, cannot give rise to an interpretation going beyond the cases expressly envisaged by the Convention (see, in particular, Handte, paragraph 14; Case C-89/91 Shearson Lehman Hutton v TVB [1993] ECR I-139, paragraphs 15 and 16; Case C-269/95 Benincasa v Dentalkit [1997] ECR I-3767, paragraph 13; and Case C-51/97 Réunion Européenne and Others [1998] ECR I-6511, paragraph 16).
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37 It is therefore necessary in the first instance to examine whether an action such as that at issue in the main proceedings is contractual in nature.
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100. First, it is true that an EU institution, when assessing a request for access to documents which it holds, may take into account more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001 (see, to that effect, Commission v Éditions Odile Jacob EU:C:2012:393, paragraph 113, and Commission v Agrofert Holding EU:C:2012:394, paragraph 55).
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113. In that regard, it must be noted that a European Union institution, when assessing a request for access to documents held by it, may take into account more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001.
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25. Full harmonisation in the field of non-life insurance rates precluding any national measure liable to have effects on rates cannot be presumed in the absence of a clearly expressed intention to this effect on the part of the Community legislature.
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16. The purpose of the pre-litigation procedure laid down in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission (judgment in Case 293/85 Commission v Belgium [1988] ECR 305, paragraph 13; order in Commission v Spain , cited above, paragraph 16, and judgment in Case C-1/00 Commission v France [2001] ECR I-9989, paragraph 53).
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53 As to those submissions, it is to be observed that the function of the pre-litigation procedure laid down in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission. The proper conduct of that procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (order in Case C-266/94 Commission v Spain [1995] ECR I-1975, paragraphs 16 and 17).
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55. It has consistently been held that if a prior administrative authorisation scheme is to be justified even though it derogates from such fundamental freedoms, it must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily. Furthermore, any person affected by a restrictive measure based on such a derogation must have an effective judicial remedy available to him (see Sporting Exchange , paragraph 50, and Carmen Media Group , paragraph 87).
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44 Suffice it to recall in this regard that, according to settled case-law, it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the action (see, in particular, Case C-129/94 Ruiz Bernáldez [1996] ECR I-0000, paragraph 7).
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7. On this point, the Court has consistently held that it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (see, inter alia , Case C-143/94 Furlanis Costruzioni Generali [1995] ECR I-0000, paragraph 12). That is not so, however, in the main proceedings in this case.
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23 It follows from the foregoing that the abovementioned provision concerns relations between the Member States and the Commission and does not give rise to any right for individuals which might be infringed by a Member State' s breach of its obligation to inform the Commission in advance of draft rules .
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62 It should first of all be observed that the obligation to provide a statement of reasons laid down in Article 253 EC is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. Accordingly, the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see, inter alia, Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35 and Italy v Commission, cited above, paragraph 48).
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48 Fourth, concerning the question whether the Commission failed to comply with its obligation to state reasons, it must be made clear that that obligation is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-17/99 France v Commission [2001] ECR I-2481, paragraphs 35 and 36).
The general plea: failure to take account of the value of TWECs as an instrument of intervention in the labour market
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32 The fact that a levy is categorised as a tax under national legislation does not mean that, as regards Regulation No 1408/71, that same levy cannot be regarded as falling within the scope of that regulation and caught by the prohibition against overlapping legislation.
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43. It must be recalled that the principles of legal certainty and protection of legitimate expectations form part of the Community legal order. On that basis, these principles must be respected by the Community institutions, but also by Member States in the exercise of the powers conferred on them by Community directives (see, to that effect, Case C‑381/97 Belgocodex [1998] ECR I‑8153, paragraph 26; Case C‑376/02 ‘ Goed Wonen ’ [2005] ECR I-3445, paragraph 32; and Case C‑271/06 Netto Supermarkt [2008] ECR I‑771, paragraph 18).
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18. However, it must be noted that, in the exercise of the powers conferred on them by Community directives, Member States must respect the general principles of law that form part of the Community legal order, which include, in particular, the principles of legal certainty and proportionality and the principle of protection of legitimate expectations (see, to that effect, Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Molenheide and Others [1997] ECR I-7281, paragraphs 45 to 48; Case C-384/04 Federation of Technological Industries and Others [2006] ECR I-4191, paragraph 29; and Joined Cases C-181/04 to C‑183/04 Elmeka [2006] ECR I-8167, paragraph 31).
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Il résulte de l’article 14, paragraphe 3, première phrase, du règlement no 659/1999 que la récupération d’une aide illégale déclarée incompatible avec le marché intérieur s’effectue « sans délai et conformément aux procédures prévues par le droit national de l’État membre concerné », pour autant que ces dernières permettent l’exécution immédiate et effective de la décision de la Commission. À cette fin, l’État membre concerné est tenu de prendre toutes les mesures prévues par leurs systèmes juridiques respectifs, sans préjudice du droit de l’Union (arrêt du 11 septembre 2014, Commission/Allemagne, C‑527/12, EU:C:2014:2193, point 38).
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35 It should be first noted that retroactive withdrawal of a favourable administrative act is generally subject to very strict conditions (see Case 54/77 Herpels v Commission [1978] ECR 585, paragraph 38). According to settled case-law, while it must be acknowledged that any Community institution which finds that a measure which it has just adopted is tainted by illegality has the right to withdraw it within a reasonable period, with retroactive effect, that right may be restricted by the need to fulfil the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof (Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraphs 10 to 12; Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005, paragraphs 12 to 17; Case C-248/89 Cargill v Commission [1991] ECR I-2987, paragraph 20, and Case C-365/89 Cargill v Produktschap voor Margarine, Vetten en Oliën [1991] ECR I-3045, paragraph 18).
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20 While it must be acknowledged that any Community institution which establishes that a measure which it has just adopted is tainted with illegality has the right to withdraw it within a reasonable period, with retroactive effect, that right may be restricted by the need to fulfil the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof (see the judgment in Case 14/81 Alpha Steel v Commission ([1982] ECR 749).
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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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78
Only if the Court of Justice were to consider that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, owing to the inappropriateness of the amount of a fine (see, inter alia, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 73).
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73
It is only in so far as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, that it would have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 165 and the case-law cited).
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19 It should also be noted that the records which are kept in order to comply with the requirement to keep stock accounts must include, as an indispensable minimum, all the information listed in Article 4 ( 2 ), and be accompanied by supporting documents . If the indispensable minimum information is not present, the requirement to keep a stock account cannot be regarded as having been met . However, if any doubt exists as to the accuracy of certain entries in the stock account, Article 4 ( 2 ) does not preclude the use of other additional documents in order to remove those doubts .
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34. Such penalties must not, however, go further than is necessary to attain those objectives (see, to that effect, judgments in Ecotrade , C‑95/07 and C‑96/07, EU:C:2008:267, paragraphs 65 to 67; EMS-Bulgaria Transport , C‑284/11, EU:C:2012:458, paragraph 67; and Rēdlihs , EU:C:2012:497, paragraph 47).
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66. Although those provisions allow Member States to take certain measures, they must not however go further than is necessary to attain the objectives mentioned in the preceding paragraph. Such measures may not therefore be used in such a way that they would have the effect of systematically undermining the right to deduct VAT, which is a fundamental principle of the common system of VAT established by the relevant Community legislation (see Joined Cases C‑286/94, C‑340/95, C‑401/95 and C‑47/96 Molenheide and Others [1997] ECR I‑7281, paragraph 47, and Gabalfrisa and Others , paragraph 52).
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18 Lastly, Wiljo observes that the judgment in TWD Textilwerke Deggendorf, cited above, was delivered after the time-limit for bringing an action for annulment of the Commission's decision of 6 May 1993 had expired.
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19. It is established, in that regard, that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered by their nature as likely to have negative effects, in particular on the price, quantity or quality of the goods and services, so that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market (see, to that effect, in particular, judgment in Clair , 123/83, EU:C:1985:33, paragraph 22). Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 51).
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51. Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 81(1) EC, to prove that they have actual effects on the market (see, to that effect, in particular, judgment in Clair , 123/83, EU:C:1985:33, paragraph 22). Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers.
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53. It should be observed in that regard that, as the private copying levy system at issue in the main proceedings permits those responsible for payment to pass on the amount of the levy in the amount charged for the mobile telephones in question and the final user therefore bears the burden of the levy, it is, in principle, consistent with the ‘fair balance’ between the interests of the copyright holders and those of the users of protected subject-matter referred to in recital 31 in the preamble to Directive 2001/29 that only the final purchaser of a mobile telephone should be able to obtain reimbursement of that levy and that reimbursement should be conditional upon the submission of an appropriate application to the organisation responsible for administering the levy.
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68. As regards the Commission's alleged error in interpreting the results of its inspections, it should be noted that, in order to prove an infringement of the rules on the common organisation of the agricultural markets, the Commission is not required to demonstrate exhaustively that the checks carried out by the national authorities are inadequate, or that the data submitted by them are incorrect, but to adduce evidence of serious and reasonable doubt on its part regarding the checks or data. The reason for this mitigation of the burden of proof on the Commission is that it is the Member State which is best placed to collect and verify the data required for the clearance of EAGGF accounts and, consequently, it is for that State to adduce the most detailed and comprehensive evidence that its inspections or figures are accurate and, if appropriate, that the Commission's statements are incorrect (see in particular Case C-247/98 Greece v Commission [2001] ECR I-1, paragraphs 7 to 9).
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9 The reason for this mitigation of the burden of proof on the Commission is that it is the Member State which is best placed to collect and verify the data required for the clearance of EAGGF accounts and, consequently, it is for that State to adduce the most detailed and comprehensive evidence that its inspections or figures are accurate and, if appropriate, that the Commission's statements are incorrect (Case
C-54/95 Germany v Commission, paragraph 35; Case C-28/94 Netherlands v Commission, paragraph 41).
The expenses by way of compensatory aid in the arable crops sector and by way of premiums for beef and veal
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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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33. As the Court has already held, it may be established from an analysis of the characteristics of the common system of VAT that, as regards transactions within the territory of a Member State, the chargeable event is constituted by the supply of goods for valuable consideration by a taxable person acting as such, whereas as regards imports the chargeable event is constituted by the mere entry of the goods into the territory of a Member State whether or not there is a transaction, and irrespective of whether the transaction is carried out for valuable consideration or free of charge, be it by a taxable person or a private person (see, inter alia, Case 15/81 Schul [1982] ECR 1409, paragraph 14).
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14 IT MAY BE CONCLUDED FROM AN ANALYSIS OF THE CHARACTERISTICS OF THE COMMON SYSTEM OF VALUE-ADDED TAX , AS SET OUT ABOVE , ON THE ONE HAND THAT , AS REGARDS TRANSACTIONS WITHIN A MEMBER STATE THE CHARGEABLE EVENT IS CONSTITUTED BY THE SUPPLY OF GOODS FOR VALUABLE CONSIDERATION BY A TAXABLE PERSON ACTING AS SUCH WHEREAS AS REGARDS IMPORTS THE CHARGEABLE EVENT IS CONSTITUTED BY THE MERE ENTRY OF THE GOODS INTO THE TERRITORY OF A MEMBER STATE WHETHER OR NOT THERE IS A TRANSACTION , AND IRRESPECTIVE OF WHETHER THE TRANSACTION IS CARRIED OUT FOR VALUABLE CONSIDERATION OR FREE OF CHARGE , BE IT BY A TAXABLE PERSON OR A PRIVATE PERSON .
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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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24. The Court answered in the negative, pointing out that, under Article 5(1) of Directive 77/388, ‘“[s]upply of goods” shall mean the transfer of the right to dispose of tangible property as owner’. The Court stated that the concept of a supply of goods includes any transaction of a supply of tangible property by a party which empowers the other party to dispose of it as if he were the owner of that property. It held that the oil companies transferred to the lessee of the leased vehicle the right actually to dispose of the fuel as owner and that there was not a supply of fuel by those companies to the lessor of the leased vehicle nor, as a result, from that lessor to the lessee of that vehicle (judgment in Auto Lease Holland , C‑185/01, EU:C:2003:73, paragraphs 31 to 36).
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33. Consequently, in order to answer the question referred, it is necessary to determine to whom, whether the lessor or the lessee, the oil companies transferred, in the main proceedings, that right actually to dispose of the fuel as owner.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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22. By virtue of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 38(1)(c) of its Rules of Procedure, the Commission must, in any application made under Article 258 TFEU, indicate the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based. It follows that the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties (see, inter alia, judgment in Commission v Netherlands , EU:C:2012 :243, paragraphs 35 and 36).
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36. It follows that the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the treaties.
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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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14 As the Court has consistently held, the principles of legal certainty and the protection of individuals require, in areas covered by Community law, that the Member States' legal rules should be worded unequivocally so as to give the persons concerned a clear and precise understanding of their rights and obligations and enable national courts to ensure that those rights and obligations are observed (see to this effect the judgment in Case 257/86 Commission v Italy [1988] ECR 3249, paragraph 12).
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12 Moreover, the Court has consistently held ( see inter alia the judgment of 30 January 1985 in Case 143/83 Commission v Kingdom of Denmark (( 1985 )) ECR 427 ) that the principles of legal certainty and the protection of individuals require, in areas covered by Community law, that the Member States' legal rules should be worded unequivocally so as to give the persons concerned a clear and precise understanding of their rights and obligations and enable national courts to ensure that those rights and obligations are observed .
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49. Such an approach appears moreover to be fully justified by the circumstance that, in practice, it is not always possible for the competent authority to ascertain that the animals have actually suffered, or been injured, as a result of non‑compliance with those provisions.
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87. Since Article 30 EC contains an exception, which must be narrowly interpreted, to the rule of the free movement of goods within the Community, it is for the national authorities which invoke it to demonstrate in each case, taking account of the results of international scientific research, that their legislation is necessary in order effectively to protect the interests referred to in that provision, and, in particular, that the marketing of the products in question poses a genuine threat to public health (see, to that effect, Commission v Denmark , paragraph 46, and Case C‑24/00 Commission v France , paragraph 53 and case-law cited).
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53. Furthermore, since Article 36 of the EC Treaty (now, after amendment, Article 30 EC) provides for an exception, to be interpreted strictly, to the rule of free movement of goods within the Community, it is for the national authorities which invoke it to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to give effective protection to the interests referred to in that provision and, in particular, that the marketing of the products in question poses a real risk to public health (see Commission v Denmark , paragraph 46).
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18 THE CONVENTION MERELY REGULATES THE PROCEDURE FOR OBTAINING AN ORDER FOR THE ENFORCEMENT OF FOREIGN ENFORCEABLE INSTRUMENTS AND DOES NOT DEAL WITH EXECUTION ITSELF , WHICH CONTINUES TO BE GOVERNED BY THE DOMESTIC LAW OF THE COURT IN WHICH EXECUTION IS SOUGHT , SO THAT INTERESTED THIRD PARTIES MAY CONTEST EXECUTION BY MEANS OF THE PROCEDURES AVAILABLE TO THEM UNDER THE LAW OF THE STATE IN WHICH EXECUTION IS LEVIED .
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27. In addition, it is clear from the structure and purpose of Decision No 1/80 that, at the current stage of development of freedom of movement for workers under the EEC-Turkey Association, that decision is essentially aimed at the progressive integration of Turkish workers in the host Member State through the pursuit of lawful employment which should be uninterrupted (see judgment in Abatay and Others , EU:C:2003:572, paragraph 90).
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90. It is clear from the structure and the purpose of Decision No 1/80 that, at the current stage of the development of freedom of movement for workers under the EEC-Turkey Association and without prejudice to the particular position of family members authorised to join a Turkish worker already legally present in the territory of a Member State, that decision is essentially aimed at the progressive integration of Turkish workers into that territory through the pursuit of lawful employment which should be uninterrupted for one, three or four years, as the case may be, save in the cases of interruption of the employment relationship set out in Article 6(2) of that decision.
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85. It is not sufficient to establish that a project is to be carried out in a national park in order to assume that the project will have significant effects on the environment. At the very least, the Commission must furnish a minimum of proof of the effects that the project is likely to have on the environment.
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32. Since Community law does not detract from the power of the Member States to organise their own social security systems (Case C‑385/99 Müller-Fauré and Van Riet [2003] ECR I-4509, paragraph 100), in the absence of harmonisation at Community level it is for the legislation of the Member State concerned to determine the conditions governing the right or duty to be insured with a social security scheme, the level of contributions payable by insured persons (see, in particular, Case C-512/03 Blanckaert [ 2005] ECR I-0000, paragraph 49) and the income to be taken into account when calculating social security contributions (Case C-18/95 Terhoeve [1999] ECR I-342, paragraph 51).
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49. Since Community law does not detract from the power of the Member States to organise their own social security systems (Case C-385/99 Müller-Fauré and Van Riet [2003] ECR I-4509, paragraph 100), in the absence of harmonisation at Community level it is for the legislation of the Member State concerned to determine the range of insured persons and the level of contributions payable by insured persons to the national social security system and the respective reductions. Further, it falls within the internal process of such a system to allow entitlement to reductions in contributions only to persons liable to pay them, that is to say, persons insured under that system.
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55 THAT ARGUMENT CANNOT BE ACCEPTED EITHER . AS THE COMMISSION HAS RIGHTLY OBSERVED , RECOGNITION OF SUCH AN OBLIGATION WOULD BE TANTAMOUNT TO CONFERRING AN UNJUSTIFIED COMPETITIVE ADVANTAGE ON UNDERTAKINGS LEAST WELL ADAPTED TO THE CONDITIONS OF THE MARKET .
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28
As made clear, inter alia, in recitals 69 and 70 of the REACH Regulation, that regulation makes substances ‘of very high concern’ subject to careful attention. Those substances are thus subject to the authorisation scheme laid down in Title VII of that regulation. Article 55 of that regulation states that the objective of the authorisation scheme is ‘to ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled and that these substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable’ (see, inter alia, judgment of 15 March 2017, Polynt v ECHA, C‑323/15 P, EU:C:2017:207, paragraph 21).
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21
As made clear, inter alia, in recitals 69 and 70 of the REACH Regulation, that regulation makes substances ‘of very high concern’ subject to careful attention. Those substances are thus subject to the authorisation regime laid down in Title VII of that regulation. Article 55 of that regulation states that the aim of the authorisation regime is ‘to ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled and that these substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable’.
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54. The scope of a bilateral tax convention is limited to the natural or legal persons referred to in it.
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19 With regard to the German Government' s argument to the effect that the prohibition on the marketing of the products at issue is necessary in order to achieve the objectives of the common agricultural policy, the Court has already held in the judgments of 23 February 1988 in Case 216/84 Commission v France, cited above, paragraphs 18 and 19, of 14 July 1988 in Case 407/85 Drei Glocken v USL Centro-Sud (( 1988 )) ECR 4233, paragraph 26 and of 2 February 1989 in Case 274/87 Commission v Germany (( 1989 )) ECR 0000, paragraphs 21 and 22 that once the Community has established a common market organization in a particular sector, the Member States must refrain from taking any unilateral measure which consequently falls within the competence of the Community . It is therefore for the Community and not for a Member State to seek a solution to any problem in the context of the common agricultural policy .
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22 It is also clear from those judgments that, even if they support a common policy of the Community, national measures may not conflict with one of the fundamental principles of the Community - in this case that of the free movement of goods - unless they are justified by reasons recognized by Community law . As found above, this is not the position with the provisions at issue in the present case .
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21 Admittedly, as Royscot, Harrison and Domecq, among others, have pointed out, Article 17(6) of the Sixth Directive presupposes that the exclusions which Member States may retain pursuant to that provision were lawful under the Second Directive, which predated the Sixth Directive.
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39. In that regard, in paragraph 60 of Zino Davidoff and Levi Strauss , the Court also held that implied consent cannot be inferred:
– from the fact that the proprietor of the trade mark has not communicated to all subsequent purchasers of the goods placed on the market outside the EEA his opposition to marketing within the EEA;
– from the fact that the goods carry no warning of a prohibition on their being placed on the market within the EEA;
– from the fact that the trade mark proprietor has transferred the ownership of the products bearing the trade mark without imposing any contractual reservations and that, according to the law governing the contract, the property right transferred includes, in the absence of such reservations, an unlimited right of resale or, at the very least, a right to market the goods subsequently within the EEA.
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60 The answer to be given to the second question and to Question 3(a)(i), (vi) and (vii) in Cases C-415/99 and C-416/99, and to the second question in Case C-414/99, must therefore be that implied consent cannot be inferred:
- from the fact that the proprietor of the trade mark has not communicated to all subsequent purchasers of the goods placed on the market outside the EEA his opposition to marketing within the EEA;
- from the fact that the goods carry no warning of a prohibition on their being placed on the market within the EEA;
- from the fact that the trade mark proprietor has transferred the ownership of the products bearing the trade mark without imposing any contractual reservations and that, according to the law governing the contract, the property right transferred includes, in the absence of such reservations, an unlimited right of resale or, at the very least, a right to market the goods subsequently within the EEA.
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17 However, the introduction of such strict criminal liability on the part of the employer is not compulsory. As has been pointed out above, Article 17(1) of Regulation No 3820/85 allows the Member States a discretion as to the choice of penalties to be imposed in the event of breach of the regulation, which is subject only to the obligations resulting from Article 5 of the EEC Treaty. It is therefore possible for a Member State to comply with those obligations whilst choosing not to provide for strict criminal liability on the part of the undertaking.
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47. None the less, the Court has previously held that recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other ( Parliament v Council , paragraph 37 and the case-law cited).
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37. None the less, the Court has previously held, in particular in paragraphs 17 to 21 of the judgment in Titanium dioxide , that recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other (see also, to that effect, Joined Cases C‑164/97 and C‑165/97 Parliament v Council [1999] ECR I‑1139, paragraph 14; Case C‑338/01 Commission v Council , paragraph 57; Case C‑94/03 Commission v Council [2006] ECR I‑1, paragraph 52; and Case C‑178/03 Commission v Parliament and Council [2006] ECR I‑107, paragraph 57).
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15 The same principle must apply to children of Community workers who are covered by Article 12 . That article lays down, in the same way as Article 7(2 ), a general rule which, in matters of education, requires every Member State to ensure equal treatment between its own nationals and the children of workers who are nationals of another Member State established within its territory . Accordingly, where a Member State gives its nationals the opportunity to obtain a grant in respect of education or training provided abroad, the child of a Community worker must enjoy the same advantage if he decides to pursue his studies outside the host State .
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56. While the Member States remain in principle free, by virtue of the proviso in Article 34(1) of Regulation No 44/2001, to determine, according to their own conceptions, what public policy requires, the limits of that concept are a matter of interpretation of that regulation (see Krombach , paragraph 22, and Renault , paragraph 27).
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27 The Court has held that it follows that, while the Contracting States remain free in principle, by virtue of the proviso in Article 27, point 1, of the Convention, to determine according to their own conception what public policy requires, the limits of that concept are a matter of interpretation of the Convention (Krombach, paragraph 22).
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62. Consequently, the relevant matters in that regard, in the case of a third-country national who is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law, include the nature and the seriousness of that act and the time which has elapsed since it was committed.
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72
On the other hand, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals (judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 66, and of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 34).
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66. First of all, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals.
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31 Accordingly, the answer to the third question must be that Directive 76/207 is to be interpreted as not applying to a social security scheme, such as supplementary allowance or income support, simply because the conditions of entitlement for receipt of the benefits may be such as to affect the ability of a single parent to take up access to vocational training or part-time employment.
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40. According to the settled case-law of the Court, the definition of aid is more general than that of a subsidy because it includes not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see, inter alia, judgment in Cassa di Risparmio di Firenze and Others , C‑222/04, EU:C:2006:8, paragraph 131 and the case-law cited).
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131. According to settled case-law, the definition of aid is more general than that of a subsidy because it includes not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see, in particular, Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I-8365, paragraph 38; Case C‑501/00 Spain v Commission [2004] ECR I‑6717, paragraph 90, and the case‑law there cited, and Case C-66/02 Italy v Commission [2005] ECR I‑0000, paragraph 77).
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13 IN THIS RESPECT IT MUST BE STRESSED THAT THESE CONCEPTS DEFINE THE FIELD OF APPLICATION OF ONE OF THE FUNDAMENTAL FREEDOMS GUARANTEED BY THE TREATY AND , AS SUCH , MAY NOT BE INTERPRETED RESTRICTIVELY .
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