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32. In that regard, concerning the concept of ‘services’, it should be pointed out that that concept has not been defined by the EU legislature and that, in order to avoid the existence of varying requirements for registration of trade marks according to national legislation, it is necessary to supply a uniform interpretation of that concept (see, to that effect, judgment in Praktiker Bau- und Heimwerkermärkte C‑418/02 EU:C:2005:425, paragraphs 28 to 33).
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28. It does not contain a definition of ‘services’, which Article 50 EC describes as ‘normally provided for remuneration’.
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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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39
Similarly, such circumstances are liable to dissuade the worker from taking his annual leave. In that regard, it must be noted that any practice or omission of an employer that may potentially deter a worker from taking his annual leave is equally incompatible with the purpose of the right to paid annual leave (see, to that effect, judgment of 22 May 2014, Lock, C‑539/12, EU:C:2014:351, paragraph 23 and the case-law cited).
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23. Such a reduction in a worker’s remuneration in respect of his paid annual leave, liable to deter him from actually exercising his right to take that leave, is contrary to the objective pursued by Article 7 of Directive 2003/88 (see, to that effect, inter alia, Case C‑155/10 Williams and Others EU:C:2011:588, paragraph 21). In that regard, the fact that that reduction in remuneration occurs, as is the case in the main proceedings, after the period of annual leave, is irrelevant.
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19 SINCE, MOREOVER, WORKING CONDITIONS IN THE VARIOUS MEMBER STATES ARE GOVERNED SOMETIMES BY MEANS OF PROVISIONS LAID DOWN BY LAW OR REGULATION AND SOMETIMES BY AGREEMENTS AND OTHER ACTS CONCLUDED OR ADOPTED BY PRIVATE PERSONS, TO LIMIT THE PROHIBITIONS IN QUESTION TO ACTS OF A PUBLIC AUTHORITY WOULD RISK CREATING INEQUALITY IN THEIR APPLICATION .
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38. It should be recalled that the Court, after noting that the Habitats Directive does not define the terms ‘plan’ and ‘project’, has stated that the definition of ‘project’ in the second indent of Article 1(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) is relevant to defining the concept of ‘plan’ or ‘project’ as provided for in the Habitats Directive ( Waddenvereniging and Vogelbeschermingsvereniging , paragraphs 23, 24 and 26).
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26. Such a definition of ‘project’ is relevant to defining the concept of plan or project as provided for in the Habitats Directive, which, as is clear from the foregoing, seeks, as does Directive 85/337, to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment.
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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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26 Article 2(4) is specifically and exclusively designed to authorize measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life (Case 312/86 Commission v France [1988] ECR 6315, paragraph 15, and Kalanke, paragraph 18).
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18 That provision is specifically and exclusively designed to allow measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life (see Case 312/86 Commission v France [1988] ECR 6315, paragraph 15).
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31. In addition, in order to attain that objective, it should be considered that the concept of ‘establishment’, within the meaning of Directive 95/46, extends to any real and effective activity — even a minimal one — exercised through stable arrangements.
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53 As regards application of the Agreement establishing the WTO and the agreements and memorandums annexed to it (the WTO agreements) within the Community legal order, it follows from the judgment in Case C-149/96 Portugal v Council [1999] ECR I-8395, paragraphs 42 to 47, that, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions.
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45 However, the lack of reciprocity in that regard on the part of the Community's trading partners, in relation to the WTO agreements which are based on `reciprocal and mutually advantageous arrangements' and which must ipso facto be distinguished from agreements concluded by the Community, referred to in paragraph 42 of the present judgment, may lead to disuniform application of the WTO rules.
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18 Consequently, it should be stated in reply to the second part of the second question that the Directive requires each Member State to ensure the protection of a species of bird naturally occurring in the wild state in the European territory of the Member States to which the Treaty applies, even if the natural habitat of the species in question does not occur in the territory of the Member State concerned.
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14 In this submission, the applicant is disregarding the fact that, as the Court recognized in Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 10 to 14 and in Case 8/72 Cementhandelaren v Commission [1972] ECR 977, paragraphs 10 to 14, delegation of signature is the normal means whereby the Commission exercises its powers . The applicant has not provided any evidence to show that the Community administration failed to comply with the relevant rules in this case .
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10 THE APPLICANT MAINTAINS THAT THE NOTIFICATION OF OBJECTIONS REFERRED TO IN ARTICLE 2 OF REGULATION NO 99/63 OF THE COMMISSION WAS DEFECTIVE BECAUSE IT WAS SIGNED NOT BY A MEMBER OF THE COMMISSION, BUT THE DIRECTOR-GENERAL FOR COMPTITION BY DELEGATION .
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49. Accordingly, the determination which the referring court was called upon to make by the Court, in paragraph 56 of its judgment in Test Claimants in the FII Group Litigation , relates both to the applicable nominal rates of tax and to the effective levels of taxation. The ‘tax rates’ to which paragraph 56 refers relate to the nominal rate of tax and the ‘different levels of taxation … by reason of a change to the tax base’ relate to the effective levels of taxation. The effective level of taxation may be lower than the nominal rate of tax by reason, in particular, of reliefs reducing the tax base.
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38. According to settled case-law, the various language versions of a text of EU law must be given a uniform interpretation and hence, in the case of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part (see Case C‑19/11 Geltl [2012] ECR I-0000, paragraph 43 and the case-law cited).
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43. According to settled case-law, firstly, the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Secondly, the various language versions of a text of European Union law must be given a uniform interpretation and hence, in the case of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part (see Case C-215/10 Pacific World and FDD International [2011] ECR I-7255, paragraph 48 and the case-law cited).
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78. As may be seen, in particular, from the system of agreements involved in the main actions, this kind of planning generally meets a variety of concerns.
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33. The present request 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 an effective remedy and the right to intellectual property, on the one hand, and the right to protection of personal data, on the other (see, to that effect, judgment in Promusicae , C‑275/06, EU:C:2008:54, paragraph 65).
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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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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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32. However, the special rule on jurisdiction provided for in Article 6(1) of Regulation No 44/2001 cannot be interpreted in such a way as to allow a plaintiff to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled (see, in relation to the Brussels Convention, Case 189/87 Kalfelis [1988] ECR 5565, paragraphs 8 and 9, and Réunion européenne and Others , paragraph 47). However, this does not seem to be the case in the main proceedings.
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8 The principle laid down in the Convention is that jurisdiction is vested in the courts of the State of the defendant' s domicile and that the jurisdiction provided for in Article 6 ( 1 ) is an exception to that principle . It follows that an exception of that kind must be treated in such a manner that there is no possibility of the very existence of that principle being called in question .
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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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18. According to consistent case-law, Article 56(1) EC generally prohibits restrictions on movements of capital between Member States (see, to that effect, Case C‑483/99 Commission v France [2002] ECR I-4781, paragraphs 35 and 40, and Case C‑98/01 Commission v United Kingdom [2003] ECR I-4641, paragraphs 38 and 43).
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38. It must be recalled at the outset that Article 56(1) EC gives effect to free movement of capital between Member States and between Member States and third countries. To that end it provides, within the framework of the provisions of the chapter headed "Capital and payments" , that all restrictions on the movement of capital between Member States and between Member States and third countries are prohibited.
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44
The Court, when giving a preliminary ruling, may, however, provide clarification designed to give the referring court guidance in its assessment (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 68 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 83).
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34. By contrast, the Court dismissed an objection of inadmissibility based on a claim that the alleged infringement had ceased in a situation in which the procedures for the award of contracts had been conducted entirely before the date on which the period laid down in the reasoned opinion expired, since the contracts had not been fully performed by that date (Case C-328/96 Commission v Austria [1999] ECR I-7479, paragraphs 43 to 45).
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45 This objection of inadmissibility must therefore be dismissed.
Setting of excessively short periods in the pre-litigation procedure
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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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44. Furthermore, inasmuch as it is the Member States and not the rightholders which establish the private copying exception and which authorise, for the purposes of the making of such a copy, such use of protected works or other subject-matter, it is, consequently, for the Member State which, by the establishment of that exception, has authorised the making of the private copy to ensure the proper application of that exception, and thus to restrict acts which are not authorised by the rightholders (see, to that effect, VG Wort EU:C:2013:426, paragraphs 52 and 53).
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53. Consequently it is for the Member State which, by the establishment of that exception, has authorised the making of the private copy to ensure the proper application of that exception, and thus to restrict acts which are not authorised by the rightholders.
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10. That provision quite clearly excludes from the scope of the directive not merely social security organizations ( " undertakings or institutions" ) but also the types of insurance and operations which they provide in that capacity.
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30 In order to answer that question, it is sufficient to refer to the Court's well-established case-law on the circumstances in which a directive may be relied on (see Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53, paragraphs 17 to 25).
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17 ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY , ' ' A DIRECTIVE SHALL BE BINDING , AS TO THE RESULT TO BE ACHIEVED , UPON EACH MEMBER STATE TO WHICH IT IS ADDRESSED , BUT SHALL LEAVE TO THE NATIONAL AUTHORITIES THE CHOICE OF FORM AND METHODS . ' '
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26. Toutefois, il convient également de prendre en considération la jurisprudence bien établie selon laquelle, en vertu de l’article 74, paragraphe 1, du règlement n° 40/94, les chambres de recours de l’OHMI doivent procéder à l’examen d’office des faits afin de déterminer si la marque dont l’enregistrement est demandé relève ou non de l’un des motifs de refus d’enregistrement énoncés à l’article 7 du même règlement. Il s’ensuit que les organes compétents de l’OHMI peuvent être amenés à fonder leurs décisions sur des faits qui n’auraient pas été invoqués par le demandeur (voir arrêts du 22 juin 2006, Storck/OHMI, C‑25/05 P, Rec. p. I‑5719, point 50, et du 19 avril 2007, OHMI/Celltech, C‑273/05 P, Rec. p. I‑2883, point 38).
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36
Article 15(3) of Decision 2011/278 adopted to implement Article 10a(5) of Directive 2003/87, does not permit the taking into account of the emissions of electricity generators in determining the maximum annual amount of allowances (see, to that effect, judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 68).
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68
As a consequence, by not permitting the taking into account of the emissions of electricity generators in determining the maximum annual amount of allowances, Article 15(3) of Decision 2011/278 is consistent with the wording of Article 10a(5) of Directive 2003/87, read in conjunction with Article 10a(3) of that directive.
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36 It was in order to conform to this trend, which discloses a progressive affirmation of individuals' right of access to documents held by public authorities, that the Council deemed it necessary to amend the rules governing its internal organization, which had hitherto been based on the principle of confidentiality.
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62. Article 248(4) EC provides, inter alia, that the Court of Auditors is to draw up an annual report which it is to forward to the other institutions and which is published in the Official Journal of the European Union , together with the replies of those institutions to the observations of the Court of Auditors. The latter may also, at any time, submit observations, particularly in the form of special reports, on specific questions and deliver opinions at the request of one of the other institutions of the Community. As the Court of Justice has already stated, that provision is intended to contribute to improving the financial management of the Community by providing for reports to be transmitted to the institutions and for the latter to respond to them (Case C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, paragraph 27). Such reports are intended to give guidance to the budgetary authority required to discharge the accounts and, more generally, to all public bodies capable of contributing to the filling or correction of any lacunae or dysfunction observed by the Court of Auditors in those areas.
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27 It should be noted that, under the provisions applicable to its proceedings, the Court of Auditors is not bound to submit draft reports to third parties under the same conditions which apply in the case of Community institutions or to publish the replies of those concerned following publication of its reports. The procedure provided for under Articles 188c(4) of the EC Treaty (now, after amendment, Article 248(4) EC) and Article 206 of the Treaty is intended to contribute to improving the financial management of the Community by providing for reports to be transmitted to the institutions and for the latter to respond to them. Involvement of third parties in that procedure would not contribute to attainment of the objective pursued.
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38. In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.
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Cette motivation doit être appréciée en fonction des circonstances de l’espèce. Il n’est pas exigé que la motivation spécifie
tous les éléments de fait et de droit pertinents dans la mesure où la question de savoir si la motivation d’un acte satisfait
aux exigences de l’article 296 TFUE doit être appréciée au regard non seulement de son libellé, mais aussi de son contexte
ainsi que de l’ensemble des règles juridiques régissant la matière concernée (arrêt du 29 septembre 2011, Elf Aquitaine/Commission,
C‑521/09 P, EU:C:2011:620, point 150 et jurisprudence citée).
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150. It is settled case-law that the requirement to state reasons must be assessed by reference to the circumstances of the 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, inter alia, Commission v Sytraval and Brink’s France , paragraph 63; Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraphs 166 and 178; and Deutsche Telekom v Commission , paragraph 131).
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78. Although such measures show that certain initiatives have been undertaken to deal with the difficulties in Campania, the fact remains that, in so acting, the Italian Republic clearly acknowledges that, on the expiry of the deadline set in the reasoned opinion, the installations then existing and operational in Campania fell a long way short of being able to meet the actual needs of the region in terms of waste disposal.
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58. En ce qui concerne l’article 42 de la même directive, il y a lieu d’ajouter que de simples pratiques administratives, par nature modifiables au gré de l’administration et dépourvues d’une publicité adéquate, ne garantissent pas la transposition correcte d’une directive (voir, notamment, arrêt du 22 décembre 2008, Commission/Italie, C-283/07, point 33).
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33. En outre, de simples pratiques administratives, par nature modifiables au gré de l’administration et dépourvues d’une publicité adéquate, ne sauraient être considérées comme constituant une exécution des obligations qui incombent aux États membres dans le cadre de la transposition d’une directive (voir arrêts du 13 mars 1997, Commission/France, C‑197/96, Rec. p. I‑1489, point 14; du 10 mars 2005, Commission/Royaume-Uni, C‑33/03, Rec. p. I‑1865, point 25, et du 10 mai 2007, Commission/Autriche, précité, point 80).
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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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34. First of all, a request for clarification of a tender, which may not be made until after the contracting authority has looked at all the tenders, must, as a general rule, be sent in an equivalent manner to all tenderers in the same situation (see, to that effect, SAG ELV Slovensko and Others , paragraphs 42 and 43).
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43. Furthermore, that request must be sent in an equivalent manner to all undertakings which are in the same situation, unless there is an objectively verifiable ground capable of justifying different treatment of the tenderers in that regard, in particular where the tender must, in any event, in the light of other factors, be rejected.
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61
In order to assess whether a penalty is consistent with the principle of proportionality, account must be taken, inter alia, of the nature and the degree of seriousness of the infringement which the penalty is intended to sanction and of the means of establishing the amount of the penalty (see, to that effect, judgments of 8 May 2008, Ecotrade, C‑95/07 and C‑96/07, EU:C:2008:267, paragraphs 65 to 67; and of 20 June 2013, Rodopi-M 91, C‑259/12, EU:C:2013:414, paragraph 38).
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51. More specifically, the Court has taken that step only in quite specific circumstances, notably where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of EU provisions, to which the conduct of other Member States or the Commission may even have contributed (see judgment in Santander Asset Management SGIIC and Others , EU:C:2012:286, paragraph 60 and the case-law cited).
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60. More specifically, the Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with European Union law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may even have contributed (see, inter alia, Case C‑423/04 Richards [2006] ECR I‑3585, paragraph 42, and Kalinchev , paragraph 51).
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41. As it is clear from the wording of Article 18(2) of the Sixth Directive, the right to deduct must be exercised in principle ‘during the same period’ as that in which it arose.
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100. Thus, the Court has already held that a cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the FEU Treaty is designed to bring about and is therefore capable of affecting trade between Member States within the meaning of Article 81(1) EC (see, to that effect, Case C‑35/99 Arduino [2002] ECR I‑1529, paragraph 33; Asnef-Equifax and Administración del Estado , paragraph 37 and the case-law cited; and Erste Group Bank and Others v Commission , paragraph 38) and that, where the services concerned have a cross border dimension, that is a relevant factor in determining whether trade between Member States is affected within the meaning of that provision (see, by analogy, Case 311/85 Vereniging van Vlaamse Reisbureaus [1987] ECR 3801, paragraphs 18 and 21).
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18 FURTHERMORE, SUCH AGREEMENTS MAY AFFECT TRADE BETWEEN MEMBER STATES IN SEVERAL RESPECTS . FIRST OF ALL, TRAVEL AGENTS OPERATING IN ONE MEMBER STATE MAY SELL TRAVEL ORGANIZED BY TOUR OPERATORS ESTABLISHED IN OTHER MEMBER STATES . SECONDLY, THESE AGENTS MAY SELL TRAVEL TO CUSTOMERS RESIDING IN OTHER MEMBER STATES . THIRDLY, THE TRAVEL IN QUESTION IS OFTEN TO OTHER MEMBER STATES .
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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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33
As a preliminary point, it should be recalled that, when the Court is requested to give a preliminary ruling on a matter of classification for customs purposes, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. In any event, the national court is in a better position to do so (judgment of 12 June 2014, Lukoyl Neftohim Burgas, C‑330/13, EU:C:2014:1757, paragraph 27 and the case-law cited).
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27. As a preliminary point, it should be recalled, first of all, that, when the Court is requested to give a preliminary ruling on a matter of classification for customs purposes, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. In any event the national court is in a better position to do so (Joined Cases C‑260/00 to C‑263/00 Lohman and Medi Bayreuth EU:C:2002:637, paragraph 26; Case C‑12/10 Lecson Elektromobile EU:C:2010:823, paragraph 15; and Joined Cases C‑320/11, C‑330/11, C‑382/11 and C‑383/11 Digitalnet and Others EU:C:2012:745, paragraph 61).
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52 It is necessary to consider first whether a decision taken by the organisations representing employers and workers in a given sector, in the context of a collective agreement, to set up in that sector a single pension fund responsible for managing a supplementary pension scheme and to request the public authorities to make affiliation to that fund compulsory for all workers in that sector is contrary to Article 85 of the Treaty.
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45 Similarly, the Court has consistently held that Article 29(5) of Directive 71/305 prohibits Member States from introducing provisions which require the automatic exclusion from procedures for the award of public works contracts of certain tenders determined according to a mathematical criterion, instead of obliging the awarding authority to apply the examination procedure laid down in the Directive (Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 19 and 21; Case C-295/89 Donà Alfonso [1991] ECR I-2967 (Summary publication), paragraphs 1 and 2 of the operative part).
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21 The answer to the first question must therefore be that when implementing Council Directive 71/305 Member States may not depart to any material extent from the provisions of Article 29(5 ) thereof .
The second question
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46. Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in accordance with settled case-law in respect of derogations from fundamental freedoms (see, inter alia, Case C‑503/03 Commission v Spain [2006] ECR I‑1097, paragraph 45; Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 86; and Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 50), be interpreted strictly.
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20
First, it is necessary that human consumption of those substances was not ‘significant’ within the EU before 15 May 1997, the date of entry into force of that regulation (see, to that effect, judgment of 9 June 2005, HLH Warenvertrieb and Orthica, C‑211/03, C‑299/03 and C‑316/03 to C‑318/03, EU:C:2005:370, paragraphs 82 and 87).
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87. As regards the reference date which must be taken into account in order to determine the extent of the human consumption of the food or food ingredient in question, it must be held that the term ‘hitherto’ in Article 1(2) of Regulation No 258/97 refers to the date on which that regulation entered into force. In accordance with Article 15 of that regulation, that date is 15 May 1997.
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9 Il convient de rappeler que cette disposition se combine avec les règles de conflit énoncées aux articles 13 à 17 du même règlement ( voir arrêt du 19 février 1981, Beeck, point 7, 104/80, Rec . p . 503 ).
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25. In accordance with established case-law, the distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation No 40/94, must be assessed, firstly, by reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the perception of them by the relevant public, which consists of average consumers of the goods or services in question, who are reasonably well informed and reasonably observant and circumspect (see Joined Cases C‑456/01 P and C‑457/01 P Henkel v OHIM [2004] ECR I‑5089, paragraph 35 and case-law cited).
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35. That distinctive character must be assessed, first, by reference to the products or services in respect of which registration has been applied for and, second, by reference to the perception of the relevant public, which consists of average consumers of the products or services in question, who are reasonably well informed and reasonably observant and circumspect (see, inter alia, Linde , paragraph 41, and Case C‑363/99 Koninklijke KPN Nederland [2004] ECR I‑0000, paragraph 34).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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25. The Court observes in that regard that, for Article 101 TFEU to apply, it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking suffices (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 97).
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97 IT MUST BE EMPHASIZED , IN THAT RESPECT , THAT ARTICLE 15 ( 1 ) AND ( 2 ) OF REGULATION NO 17 EMPOWERS THE COMMISSION TO IMPOSE ON UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS FINES WHERE , INTENTIONALLY OR NEGLIGENTLY , THEY HAVE BEEN GUILTY OF INFRINGEMENTS . FOR THAT PROVISION TO APPLY IT IS NOT NECESSARY FOR THERE TO HAVE BEEN ACTION BY , OR EVEN KNOWLEDGE ON THE PART OF , THE PARTNERS OR PRINCIPAL MANAGERS OF THE UNDERTAKING CONCERNED ; ACTION BY A PERSON WHO IS AUTHORIZED TO ACT ON BEHALF OF THE UNDERTAKING SUFFICES .
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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. Selon les requérants, la Cour a affirmé dans l’arrêt du 17 septembre 1980, Philip Morris/Commission (730/79, Rec. p. 2671, point 26) que la compatibilité d’une aide avec le traité FUE doit être appréciée dans le cadre du droit de l’Union et non dans celui d’un seul État membre. Dès lors, des arguments ou des critères tirés du droit national seraient à cet égard sans pertinence.
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26 AS FAR AS CONCERNS ARTICLE 92 ( 3 ) ( C ) OF THE TREATY THE ARGUMENTS SUBMITTED BY THE APPLICANT ARE NOT RELEVANT . THE COMPATIBILITY WITH THE TREATY OF THE AID IN QUESTION MUST BE DETERMINED IN THE CONTEXT OF THE COMMUNITY AND NOT OF A SINGLE MEMBER STATE . THE COMMISSION ' S ASSESSMENT IS BASED FOR THE MOST PART ON THE FINDING THAT THE INCREASE IN THE PRODUCTION OF CIGARETTES ENVISAGED WOULD BE EXPORTED TO THE OTHER MEMBER STATES , IN A SITUATION WHERE THE GROWTH OF CONSUMPTION HAS SLACKENED AND THIS DID NOT PERMIT THE VIEW THAT TRADING CONDITIONS WOULD REMAIN UNAFFECTED BY THIS AID TO AN EXTENT CONTRARY TO THE COMMON INTEREST . THIS ASSESSMENT IS JUSTIFIED . THE FINDING THAT MARKET CONDITIONS IN THE CIGARETTE MANUFACTURING INDUSTRY SEEM APT , WITHOUT STATE INTERVENTION , TO ENSURE A NORMAL DEVELOPMENT , AND THAT THE AID CANNOT THEREFORE BE REGARDED AS ' ' FACILITATING ' ' THE DEVELOPMENT IS ALSO JUSTIFIED WHEN THE NEED FOR AID IS ASSESSED FROM THE STANDPOINT OF THE COMMUNITY RATHER THAN OF A SINGLE MEMBER STATE .
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80. As the Advocate General observes in point 99 of her Opinion, the requirements of coherence of the tax system and the balanced allocation of powers of taxation coincide.
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47. In those circumstances, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by its parent company in order for it to be presumed that the parent exercises decisive influence over the commercial policy of that subsidiary. 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 ( Akzo Nobel and Others v Commission , paragraph 61; Elf Aquitaine v Commission , paragraph 57, and Arkema v Commission , paragraph 41).
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61. In that regard, it must be made clear that, while it is true that at paragraphs 28 and 29 of Stora , paragraph 60 above, the Court of Justice referred, as well as to the fact that the parent company owned 100% of the capital of the subsidiary, to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the elements on which the Court of First Instance had based its reasoning before concluding that that reasoning was not based solely on the fact that the parent company held the entire capital of its subsidiary. Accordingly, the fact that the Court of Justice upheld the findings of the Court of First Instance in that case cannot have the consequence that the principle laid down in paragraph 50 of AEG[-Telefunken] v Commission , paragraph 60 above, is amended.
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32. Thus, as the title which Article 13A of the Sixth Directive carries, the exemptions provided for in that Article are intended to encourage certain activities in the public interest.
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13 Second, the two interpretations mentioned in paragraph 9 above are both capable of leading to consequences which are unsatisfactory and contrary to the aims of the Brussels Convention as set out in its preamble, which are, in particular, to facilitate reciprocal recognition and enforcement of judgments of courts and tribunals and to strengthen the legal protection of persons established in the Community. With respect more particularly to Article 21, the Court has repeatedly observed that that provision, together with Article 22 on related actions, is contained in Section 8 of Title II of the Brussels Convention, a section which is intended, in the interests of the proper administration of justice within the Community, to prevent parallel proceedings before the courts of different Contracting States and to avoid conflicts between decisions which might arise therefrom. Those rules are therefore designed to preclude, in so far as possible and from the outset, a situation such as that referred to in Article 27(3), namely the non-recognition of a judgment on account of its irreconcilability with a judgment given between the same parties in the State addressed (see Case 144/86 Gubisch Maschinenfabrik v Palumbo [1987] ECR 4861, paragraph 8, and Case C-351/89 Overseas Union Insurance and Others v New Hampshire Insurance [1991] ECR I-3317, paragraph 16).
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8 ACCORDING TO ITS PREAMBLE, WHICH INCORPORATES IN PART THE TERMS OF ARTICLE 220, THE CONVENTION SEEKS IN PARTICULAR TO FACILITATE THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS OF COURTS OR TRIBUNALS AND TO STRENGTHEN IN THE COMMUNITY THE LEGAL PROTECTION OF PERSONS THEREIN ESTABLISHED . ARTICLE 21, TOGETHER WITH ARTICLE 22 ON RELATED ACTIONS, IS CONTAINED IN SECTION 8 OF TITLE II OF THE CONVENTION; THAT SECTION IS INTENDED, IN THE INTERESTS OF THE PROPER ADMINISTRATION OF JUSTICE WITHIN THE COMMUNITY, TO PREVENT PARALLEL PROCEEDINGS BEFORE THE COURTS OF DIFFERENT CONTRACTING STATES AND TO AVOID CONFLICTS BETWEEN DECISIONS WHICH MIGHT RESULT THEREFROM . THOSE RULES ARE THEREFORE DESIGNED TO PRECLUDE, IN SO FAR AS IS POSSIBLE AND FROM THE OUTSET, THE POSSIBILITY OF A SITUATION ARISING SUCH AS THAT REFERRED TO IN ARTICLE 27 ( 3 ), THAT IS TO SAY THE NON-RECOGNITION OF A JUDGMENT ON ACCOUNT OF ITS IRRECONCILABILITY WITH A JUDGMENT GIVEN IN A DISPUTE BETWEEN THE SAME PARTIES IN THE STATE IN WHICH RECOGNITION IS SOUGHT .
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53. Le fait que ladite autorisation préalable puisse être subordonnée à certaines conditions dont le respect peut être contrôlé postérieurement n’est pas de nature à remettre en cause cette constatation. En effet, ces conditions ne peuvent être formulées qu’au moment de la délivrance de ladite autorisation, c’est-à-dire à un moment où ladite menace pourrait ne pas encore avoir surgi. Or, il n’est pas certain que, à ce moment précis, toutes les éventuelles hypothèses de menaces réelles et suffisamment graves pour la sécurité de l’approvisionnement en énergie puissent être prises en compte dans le cadre desdites conditions.
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32. It must also be pointed out that, according to settled case-law, classification as aid requires that all the conditions set out in that provision should be fulfilled (see Case C-142/87 Belgium v Commission (‘Tubemeuse’) [1990] ECR I-959, paragraph 25; Joined Cases C-278/92 to C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 20; Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 68, and Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 74).
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68 It should be noted as a preliminary observation that investment by the public authorities in the capital of an undertaking, in whatever form, may constitute State aid only where all the conditions set out in Article 87(1) EC are fulfilled (see, in particular, Case C-142/87 Belgium v Commission (Tubemeuse) [1990] ECR I-959, paragraph 25; Joined Cases C-278/92 to C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 20).
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61. Apart from the question whether proceedings before two non-judicial bodies may be reconciled with the requirement of a reasonable period, the jurisdiction of the Cour de cassation (Court of Cassation) of the Grand Duchy of Luxembourg is limited to questions of law, so that it does not have full jurisdiction (see, to that effect, Eur. Court H.R. Incal v. Turkey judgment of 9 June 1998, Reports of judgments and decisions 1998-IV, p. 1547, § 72).
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24. Article 17(1) of the Sixth Directive provides that the right to deduct arises at the time when the deductible tax becomes chargeable. Article 10(2) of that directive provides that such is the case as soon as the goods are delivered or the services performed (Case C-400/98 Breitsohl [2000] ECR I-4321, paragraph 36). It must be borne in mind that under Article 10(1)(b) of the Sixth Directive the tax is chargeable ‘when the tax authority becomes entitled under the law at a given moment to claim the tax from the person liable to pay’.
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36 That interpretation is confirmed by the wording of Article 17(1) of the Sixth Directive, whereby the right to deduct arises at the time when the deductible tax becomes chargeable. In accordance with Article 10(2) of that directive, that is the case as soon as the goods are delivered to, or the services are performed for, the taxable person entitled to deduct.
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51
However, the territorial scope of the prohibition may in certain circumstances be restricted (judgments of 12 April 2011, DHL Express France, C‑235/09, EU:C:2011:238, paragraph 46, and of 22 September 2016, combit Software, C‑223/15, EU:C:2016:719, paragraph 31).
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30 It is undisputed that Article 7 is not concerned with any disparities in treatment or the distortions which may result, for the persons and undertakings subject to the jurisdiction of the Community, from divergences existing between the laws of the various Member States, so long as those laws affect all persons subject to them, in accordance with objective criteria and without regard to their nationality (judgment in Case 14/68 Wilhelm v Bundeskartellamt [1969] ECR 1, paragraph 13).
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13 . ATTENDU QUE L ' ARTICLE 7 DU TRAITE C.E.E . INTERDIT A CHAQUE ETAT MEMBRE D ' APPLIQUER DIFFEREMMENT SON DROIT DES ENTENTES EN RAISON DE LA NATIONALITE DES INTERESSES ;
QUE , CEPENDANT , L ' ARTICLE 7 NE VISE PAS LES EVENTUELLES DISPARITES DE TRAITEMENT ET LES DISTORSIONS QUI PEUVENT RESULTER , POUR LES PERSONNES ET ENTREPRISES SOUMISES A LA JURIDICTION DE LA COMMUNAUTE , DES DIVERGENCES EXISTANT ENTRE LES LEGISLATIONS DES DIFFERENTS ETATS MEMBRES , DES LORS QUE CELLES-CI AFFECTENT TOUTES PERSONNES TOMBANT SOUS LEUR APPLICATION , SELON DES CRITERES OBJECTIFS ET SANS EGARD A LEUR NATIONALITE ;
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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26. The case-law shows that, while Directive 92/50 does not in theory preclude the examination of the tenderers’ suitability and the award of the contract from taking place simultaneously, the two procedures are nevertheless distinct and are governed by different rules (see, to that effect, in relation to works contracts, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 15 and 16).
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16 Even though the directive, which is intended to achieve the coordination of national procedures for the award of public works contracts while taking into account, as far as possible, the procedures and administrative practices in force in each Member State ( second recital in the preamble ), does not rule out the possibility that examination of the tenderer' s suitability and the award of the contract may take place simultaneously, the two procedures are governed by different rules .
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37 It is clear from the file and from the oral argument before the Court that the amendments made in 1995, described in paragraph 28 of the present judgment, had the effect of totally liberalising air transport between the United States of America and the Republic of Finland by ensuring free access to all routes between all points situated within those two States, without limitation of capacity or frequency, without restriction as to intermediate points and those situated behind or beyond (`behind, between and beyond rights') and with all desired combinations of aircraft (`change of gauge'). That total freedom has been complemented by provisions concerning opportunities for the airlines concerned to conclude code-sharing agreements and by provisions furthering competition or non-discrimination, in relation to CRSs for example.
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17 In its judgment in Marshall, cited above, the Court held that women are entitled to go on working beyond the qualifying age for an old-age pension, that is to say at least until the age at which a man is supposed to retire.
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36 HOWEVER , IN VIEW OF THE FUNDAMENTAL IMPORTANCE OF THE PRINCIPLE OF EQUALITY OF TREATMENT , WHICH THE COURT HAS REAFFIRMED ON NUMEROUS OCCASIONS , ARTICLE 1 ( 2 ) OF DIRECTIVE NO 76/207 , WHICH EXCLUDES SOCIAL SECURITY MATTERS FROM THE SCOPE OF THAT DIRECTIVE , MUST BE INTERPRETED STRICTLY . CONSEQUENTLY , THE EXCEPTION TO THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF SEX PROVIDED FOR IN ARTICLE 7 ( 1 ) ( A ) OF DIRECTIVE NO 79/7 APPLIES ONLY TO THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS .
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53. Concerning, first, the need to safeguard a balanced allocation of the power to tax between Member States, it should be pointed out that that need cannot justify a Member State systematically refusing to grant a tax advantage to a resident subsidiary, on the ground that the income of the parent company, having its establishment in another Member State, is not capable of being taxed in the first Member State (see, to that effect, Rewe Zentralfinanz , paragraph 43).
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67. In paragraph 184 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 83 to 111).
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96 In that regard, it should be observed that, contrary to what LVM and DSM claim, the differences between the operative parts of the PVC I and the PVC II decisions and the arguments relating to limitation do not constitute a new objection upheld by the Commission in the PVC II decision. The appellants do not state which of the alleged amendments of fact and law indicate, in their view, that new objections were taken into account; nor do they show how those amendments actually relate to such objections.
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45. In addition, the question of the force of res judicata with absolute effect is a matter of public policy, which must, consequently, be raised by the Court of its own motion.
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36. For that purpose, the fact that point 7(b) and (c) of Annex I to the amended directive refers to projects for the ‘construction’ of the types of road mentioned, whereas the case in the main proceedings concerns projects for refurbishment and improvement of an existing road, does not mean that the latter are excluded from the scope of the amended directive. A project for refurbishment of a road which would be equivalent, by its size and the manner in which it is carried out, to construction may be regarded as a construction project for the purposes of that annex (see, to that effect, Case C-227/01 Commission v Spain [2004] ECR I‑8253, paragraph 46, and Abraham and Others , paragraph 32).
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32. The Court has frequently pointed out, however, that the scope of Directive 85/337 is wide and its purpose very broad (see, to that effect, Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 31, and Case C‑435/97 WWF and Others [1999] ECR I‑5613, paragraph 40). It would be contrary to the very objective of Directive 85/337 to exclude works to improve or extend the infrastructure of an existing airport from the scope of Annex II on the ground that Annex I covers the ‘construction of airports’ and not ‘airports’ as such. Such an interpretation would indeed allow all works to modify a pre-existing airport, regardless of their extent, to fall outside the obligations resulting from Directive 85/337 and would, in that regard, thus deprive Annex II to Directive 85/337 of all effect.
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72. The parties to the dispute agree that the Community possesses competences, shared with the Member States, to take:
─ pursuant to Article 15 of the Convention, the appropriate steps to ensure that in all operational states the radiation exposure to the workers and the public caused by a nuclear installation be kept as low as reasonably achievable and that no individual be exposed to radiation doses which exceed prescribed national dose limits;
─ pursuant to Article 16(2) of the Convention, the appropriate steps to ensure that, in so far as they are likely to be affected by a radiological emergency, its own population and the competent authorities of the States in the vicinity of the nuclear installation are provided with appropriate information for emergency planning and response.
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51. As far as concerns the exercise of the power of taxation so allocated by bilateral conventions to prevent double taxation, the Member States must comply with Community rules (see, to that effect, Saint-Gobain ZN , paragraph 58, and Bouanich , paragraph 50) and, more particularly, respect the principle of national treatment of nationals of other Member States and of their own nationals who exercise the freedoms guaranteed by the Treaty (see de Groot , paragraph 94).
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50. None the less, such an allocation of fiscal jurisdiction does not permit Member States to introduce discriminatory measures which are contrary to the Community rules.
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25 In the light of the aims of the Directive, in particular the abolition of indirect taxes having the same characteristics as capital duty, registration duties collected by the State for an operation covered by the Directive, which are paid to the State in order to subsidise public expenditure, must be regarded as taxes for the purposes of the Directive (see Modelo, paragraph 22).
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72. Consequently, a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 87(1) EC (see Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 14, and Paint Graphos and Others , paragraph 46 and the case-law cited).
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14 It follows that a measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom the tax exemption applies in a more favourable financial situation than other taxpayers constitutes State aid within the meaning of Article 92(1) of the Treaty.
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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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60. The Court must also uphold the objection of inadmissibility raised by the United Kingdom, set out in paragraph 55 of the present judgment. In that regard, it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, in particular, judgments in General Motors v Commission , C‑551/03 P, EU:C:2006:229, paragraph 51, and Evonik Degussa v Commission , C‑266/06 P, EU:C:2008:295, paragraph 72). It follows from this that, in so far as the appellants are, by the argument set out in paragraph 53 of the present judgment, attempting to obtain from the Court of Justice a reassessment of the facts found by the General Court, their argument must be rejected as inadmissible.
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51. In that regard, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, in particular, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 23).
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57. It follows from the foregoing that the rules laid down by the Sixth Directive in respect of adjustment are intended to enhance the precision of deductions so as to ensure the neutrality of VAT, with the result that transactions effected at an earlier stage continue to give rise to the right to deduct only to the extent that they are used to make supplies subject to VAT. By those rules, that directive is thus intended to establish a close and direct relationship between the right to deduct input VAT and the use of the goods and services concerned for taxable transactions.
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55. Admittedly, the Court has held, in relation to direct taxes, that the situations of residents and of non-residents in a Member State are generally not comparable, because the income received in the territory of a Member State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and because a non-resident’s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is easier to assess at the place where his personal and financial interests are centred, which in general is the place where he has his usual abode ( Schumacker , paragraphs 31 and 32; Case C-391/97 Gschwind [1999] ECR I-5451, paragraph 22; and Case C‑169/03 Wallentin [2004] ECR I-6443, paragraph 15).
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31 In relation to direct taxes, the situations of residents and of non-residents are not, as a rule, comparable.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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43. That exclusion is a specific expression of the principle of fiscal neutrality, which precludes, in particular, treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes (see Case C‑109/02 Commission v Germany [2003] ECR I‑12691, paragraph 20, and Ygeia , paragraph 32).
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32. Moreover, as observed by the Advocate General at point 47 of his Opinion, the imposition of VAT on such services respects the principle of fiscal neutrality, which precludes, in particular, treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes (Case C-109/02 Commission v Germany [2003] ECR I-12691, paragraph 20).
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19 IT FOLLOWS FROM THE PURPOSE ASSIGNED TO THE PRELIMINARY STAGE OF THE PROCEDURE UNDER ARTICLE 169 THAT THE INITIAL LETTER IS INTENDED TO DEFINE THE SUBJECT-MATTER OF THE DISPUTE AND TO INDICATE TO THE MEMBER STATE WHICH IS INVITED TO SUBMIT ITS OBSERVATIONS THE FACTORS ENABLING IT TO PREPARE ITS DEFENCE .
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43. Contrary to the arguments of the Spanish Government, Ireland and the United Kingdom Government, the above interpretation is not called into question by the case-law of the Court, according to which the minimum requirements which the Council may adopt by way of directives on the basis of Article 137 EC cannot apply to pay ( Dellas and Others , paragraph 39) and thus Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) does not apply to workers’ pay ( Dellas and Others , paragraph 38, and Order of 11 January 2007 in Case C-437/05 Vorel [2007] ECR I-0000, paragraph 32).
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39. Moreover, that interpretation now follows unambiguously from Article 137(6) EC, which states that the minimum requirements the Council of the European Union may adopt by means of directives, intended in particular, as in the case in the main proceedings, to ensure protection of the health and safety of workers, cannot apply to pay.
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80. It is the Member State which is best placed to collect and verify the data required for the clearance of EAGGF accounts (judgment in Greece v Commission , EU:C:2005:103, paragraph 36).
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24
It must be recalled, first of all, that the VAT Directive establishes a common system of VAT based on, inter alia, a uniform definition of taxable transactions (judgment of 11 May 2017, Posnania Investment, C‑36/16, EU:C:2017:361, paragraph 25 and the case-law cited).
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25
It must be remembered, first of all, that the VAT Directive establishes a common system of VAT based on, inter alia, a uniform definition of taxable transactions (judgment of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraph 39).
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21. The actual period of the letting is thus not, of itself, the decisive factor in determining whether a contract is one for the letting of immovable property under Community law, even if the fact that accommodation is provided for a brief period only may constitute an appropriate basis for distinguishing the provision of hotel accommodation from the letting of dwelling accommodation (Case C-346/95 Blasi [1998] ECR I-481, paragraphs 23 and 24).
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64 Secondly, it is necessary to point out that the Court has already ruled that, according to the scheme of Regulation No 2176/84, cited above, "the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country" and that "consequently, it is the expenses relating to sales on the domestic market which must be taken into account" (judgment in Case 250/85 Brother Industries Ltd v Council [1988] ECR 5683, at paragraph 18; judgment in Joined Cases 277/85 and 300/85 Canon Inc. and Others v Council [1988] ECR 5731, at paragraph 26; judgment in TEC, cited above, at paragraph 24; and judgment in Joined Cases 273/85 and 107/86 Silver Seiko Ltd and Others v Council [1988] ECR 5927, at paragraph 16). Since those principles have remained unchanged under the new basic regulation, that conclusion is equally valid for that regulation.
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16 As regards the first argument, it must be borne in mind that, according to the scheme of Regulation No 2176/84, the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country . Consequently, it is the expenses relating to sales on the domestic market which 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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9 In its judgment in Case C-194/94 CIA Security International [1996] ECR I-2201, paragraph 54 (hereinafter `CIA Security'), the Court interpreted Directive 83/189 as meaning that breach of the obligation to notify imposed by Articles 8 and 9 renders the technical regulations concerned inapplicable, so that they are unenforceable against individuals. It therefore ruled that individuals may rely on Articles 8 and 9 of Directive 83/189 before the national court which must decline to apply a national technical regulation which has not been notified in accordance with the directive.
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54 In view of the foregoing considerations, it must be concluded that Directive 83/189 is to be interpreted as meaning that breach of the obligation to notify renders the technical regulations concerned inapplicable, so that they are unenforceable against individuals.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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36 First, non-collection of the duties must have been as a result of an error made by the competent authorities themselves (see, in particular, the judgment in Covita, cited above, paragraph 25). In that regard, the national court refers expressly in its third question to the fact that on the occasion of a previous on-the-spot inspection of the imports, the authorities had raised no objection to the non-inclusion of flat-rate expenses in the customs value of similar transactions.
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25 First, non-collection of the duties must have been as the result of an error made by the competent authorities themselves. In this connection, the legitimate expectations of the person liable do not attract the protection provided for in Article 5(2) of Regulation No 1697/79 unless it was the competent authorities themselves which created the basis for the expectations of the person liable (see Case C-348/89 Mecanarte v Chefe do Serviço da Conferência Final da Alfândega [1991] ECR I-3277, paragraphs 22 and 23). Moreover, there is an error attributable to the competent authorities where they have provided erroneous information, as Covita claims in the present case, giving rise to legitimate expectations on the part of the person liable.
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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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17 It must be observed, first of all, that, according to settled case-law, Community law does not detract from the powers of the Member States to organise their social security systems (Case 238/82 Duphar and Others v Netherlands [1984] ECR 523, paragraph 16, and Case C-70/95 Sodemare and Others v Regione Lombardia [1997] ECR I-3395, paragraph 27).
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16 ALTHOUGH IT IS NOT POSSIBLE , CONTRARY TO THE CONTENTION OF THE DEFENDANT IN THE MAIN PROCEEDINGS , TO EQUATE THE COMPETENT AUTHORITY OF A MEMBER STATE WHICH , WITHIN THE FRAMEWORK OF A HEALTH-CARE INSURANCE SCHEME FINANCED BY CONTRIBUTIONS FROM THE INSURED PERSONS AND BY FINANCING FROM THE PUBLIC AUTHORITIES , DRAWS UP RULES GOVERNING AND LIMITING REIMBURSEMENT OF THE COSTS OF HEALTH CARE , WITH AN ECONOMIC OPERATOR WHO IN EACH CASE FREELY CHOOSES THE GOODS WHICH HE ACQUIRES ON THE MARKET , IT MUST BE RECOGNIZED THAT COMMUNITY LAW DOES NOT DETRACT FROM THE POWERS OF MEMBER STATES TO ORGANIZE THEIR SOCIAL SECURITY SYSTEMS AND TO ADOPT , IN PARTICULAR , PROVISIONS INTENDED TO GOVERN THE CONSUMPTION OF PHARMACEUTICAL PREPARATIONS IN ORDER TO PROMOTE THE FINANCIAL STABILITY OF THEIR HEALTH-CARE INSURANCE SCHEMES .
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62 Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.
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32. Nor is that conclusion affected by the fact that the Member State where the unemployed person was last employed, the obligations of which are suspended and not extinguished for so long as he continues to reside in another Member State, recovers its fundamental competence in the matter should the worker concerned take up residence there ( Cochet , cited above, paragraphs 15 and 16, and Huijbrechts , cited above, paragraph 24). It is moreover to be remembered that in such a situation the factor which determines whether Article 71 of Regulation No 1408/71 applies at all, namely the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment (see, in particular, Case C-454/93 Van Gestel [1995] ECR I-1707, paragraph 24), necessarily no longer pertains, so that Article 71(1)(a)(ii) ceases to be applicable ( Huijbrechts , paragraph 28).
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28 It follows from the foregoing considerations that, where an unemployed frontier worker, after receiving unemployment benefit in the State in which he is resident, settles in the Member State in which he was last employed, the derogation under Article 71(1)(a)(ii) ceases to apply, with the result that the State in which he was last employed must begin, or begin afresh, to assume its obligations under the Regulation in relation to unemployment benefit. Consequently, benefits paid by the State in which he was temporarily resident must be taken into account, for the application of the legislation of the State in which he was last employed, as though they had been paid by the latter State.
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13. À cet égard, il y a lieu de rappeler, en premier lieu, que, selon une jurisprudence constante, dans le cadre d’une procédure en manquement au titre de l’article 258 TFUE, il incombe à la Commission d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments de fait nécessaires à la vérification, par celle-ci, de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, notamment, arrêt du 17 juin 2010, Commission/Portugal, C‑105/08, Rec. p. I‑5331, point 26 et jurisprudence citée).
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35 That jurisdictional rule is a general principle, which expresses the maxim actor sequitur forum rei, because it makes it easier, in principle, for a defendant to defend himself (see, to that effect, Case C-26/91 Handte v Traitements Mécano-chimiques des Surfaces [1992] ECR I-3967, paragraph 14; see also the Jenard Report on the Brussels Convention (OJ 1979 C 59, p. 1, 18)).
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14 The rules on special and exclusive jurisdiction and those relating to prorogation of jurisdiction thus 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 are to have jurisdiction. That jurisdictional rule is a general principle because it makes it easier, in principle, for a defendant to defend himself. Consequently, the jurisdictional rules which derogate from that general principle must not lead to an interpretation going beyond the situations envisaged by the Convention.
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26 First, unlike persons who have taken out capital life assurance with companies established in Sweden, persons so insured with companies not established in Sweden must register themselves and declare premium payments to a central body, Skattemyndigheten, which also has power to grant a tax exemption or a tax reduction. Policyholders must also pay the tax themselves and for this purpose find the necessary funds, which, as Jessica Safir points out, has negative consequences for them in terms of liquidity. It is true that such obligations cannot in themselves be regarded as being contrary to Community law. However, those obligations, combined with the need to follow a centralised procedure, may dissuade interested persons from taking out capital life assurance with companies not established in Sweden, since no particular action on their part would be called for if they took out such assurance with companies established in Sweden, the tax being levied in this case on the company.
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45 That view cannot be accepted because it is contrary to the reasoning of the Court in HAG II. The Court began by noting that trade-mark rights are an essential element in the system of undistorted competition which the Treaty seeks to establish (paragraph 13). It went on to recall the identifying function of trade marks and, in a passage cited in paragraph 37 above, the conditions for trade marks to be able to fulfil that role. The Court further noted that the scope of the exclusive right which is the specific subject-matter of the trade mark must be determined having regard to its function (paragraph 14). It stressed that in that case the determinant factor was absence of consent of the proprietor of the trade mark in the importing State to the putting into circulation in the exporting State of products marketed by the proprietor of the right in the latter State (paragraph 15). It concluded that free movement of the goods would undermine the essential function of the trade mark: consumers would no longer be able to identify for certain the origin of the marked goods and the proprietor of the trade mark could be held responsible for the poor quality of goods for which he was in no way accountable (paragraph 16).
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13 Trade mark rights are, it should be noted, an essential element in the system of undistorted competition which the Treaty seeks to establish and maintain . Under such a system, an undertaking must be in a position to keep its customers by virtue of the quality of its products and services, something which is possible only if there are distinctive marks which enable customers to identify those products and services . For the trade mark to be able to fulfil this role, it must offer a guarantee that all goods bearing it have been produced under the control of a single undertaking which is accountable for their quality .
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11. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêt du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15 et jurisprudence citée).
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22 Furthermore, observance of the consultation requirement implies that the Parliament has expressed its opinion and the requirement cannot be satisfied by the Council' s simply asking for the opinion ("Isoglucose" judgments, paragraphs 34 and 35 respectively). In an emergency, it is for the Council to use all the possibilities available under the Treaty and the Parliament' s Rules of Procedure in order to obtain the preliminary opinion of the Parliament ("Isoglucose" judgments, paragraphs 36 and 37 respectively).
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37 WITHOUT PREJUDICE TO THE QUESTIONS OF PRINCIPLE RAISED BY THAT ARGUMENT OF THE COUNCIL IT SUFFICES TO OBSERVE THAT IN THE PRESENT CASE ON 25 JUNE 1979 WHEN THE COUNCIL ADOPTED REGULATION NO 1293/79 AMENDING REGULATION NO 1111/77 WITHOUT THE OPINION OF THE ASSEMBLY THE COUNCIL HAD NOT EXHAUSTED ALL THE POSSIBILITIES OF OBTAINING THE PRELIMINARY OPINION OF THE PARLIAMENT . IN THE FIRST PLACE THE COUNCIL DID NOT REQUEST THE APPLICATION OF THE EMERGENCY PROCEDURE PROVIDED FOR BY THE INTERNAL REGULATION OF THE PARLIAMENT ALTHOUGH IN OTHER SECTORS AND AS REGARDS OTHER DRAFT REGULATIONS IT AVAILED ITSELF OF THAT POWER AT THE SAME TIME . FURTHER THE COUNCIL COULD HAVE MADE USE OF THE POSSIBILITY IT HAD UNDER ARTICLE 139 OF THE TREATY TO ASK FOR AN EXTRAORDINARY SESSION OF THE ASSEMBLY ESPECIALLY AS THE BUREAU OF THE PARLIAMENT ON 1 MARCH AND 10 MAY 1979 DREW ITS ATTENTION TO THAT POSSIBILITY .
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51. Moreover, if a Member State introduces a new tax law, it obviously determines that it is to apply from a certain date. The tax applied after the entry into force of that law may therefore differ from the rate of tax previously in force. As the Court held in paragraph 49 of Nádasdi and Németh , relied on by the Romanian Government, that circumstance cannot in itself be regarded as discriminating between earlier situations and those subsequent to the entry into force of the new legislation.
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161. Contrary to the Austrian Government’s assertions, legislation such as that at issue in the main proceedings cannot be justified by the fact that, when applying the imputation method, a Member State is required to grant a tax credit only up to the limit of the amount of corporation tax for which the companies receiving the dividends are liable (see Test Claimants in the FII Group Litigation , paragraphs 50 and 52).
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52. Where, conversely, those profits are subject in the Member State of the company making the distribution to a higher level of tax than the tax levied by the Member State of the company receiving them, the latter Member State is obliged to grant a tax credit only up to the limit of the amount of corporation tax for which the company receiving the dividends is liable. It is not required to repay the difference, that is to say, the amount paid in the Member State of the company making the distribution which is greater than the amount of tax payable in the Member State of the company receiving 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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56. Furthermore, the Court has held that an allowance paid as a supplementary allowance granted exclusively to beneficiaries of a retirement and/or survival pension, financed by the same resources that are used to finance those pensions and which is linked to the retirement pension by providing the recipients with means of subsistence ensuring that they may take a holiday, may be classified as an ‘old-age pension’ within the meaning of Article 3(1)(d) of Regulation No 883/2004 (judgment in Noteboom , C‑101/04, EU:C:2005:51, paragraphs 25 to 29).
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27. Firstly, it is clear from the provisions relating to the grant of the holiday pay that it is paid exclusively to persons entitled to a retirement and/or survivor’s pension. Moreover, the national court has observed that the pensioners’ holiday pay is financed by the same resources that are used to finance the retirement and survivor’s pensions.
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60. Admittedly, a VAT identification number provides proof of the tax status of the taxable person for the purposes of the application of VAT and facilitates the tax audit of intra-Community transactions. However, it constitutes a formal requirement which cannot undermine the right of exemption from VAT where the substantive conditions for an intra-Community supply are satisfied (see, by analogy, in relation to the right of deduction, Case C-385/09 Nidera Handelscompagnie [2010] ECR I-10385, paragraph 50, and Case C-438/09 Dankowski [2010] ECR I-14009, paragraphs 33 and 47).
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83. The file shows that the 20% surcharge applies only in very exceptional circumstances to purely domestic events. However, it should be recalled that a charge which is imposed on both imported products and domestic products but in practice applies almost exclusively to imported products because domestic production is extremely small does not constitute a charge having an effect equivalent to a customs duty on imports within the meaning of Articles 23 EC and 25 EC if it is part of a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products. It therefore constitutes internal taxation within the meaning of Article 90 EC (Case 193/85 Cooperativa Co-Frutta [1987] ECR 2085, paragraph 14, and Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 53).
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53 In any event, it should be recalled that the Court has held (Case 193/85 Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085, paragraph 14) that a charge which is imposed on both imported products and domestic products but in practice applies almost exclusively to imported products because domestic production is extremely small does not constitute a charge having an effect equivalent to a customs duty on imports within the meaning of Articles 9 and 12 of the EEC Treaty if it is part of a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products. It therefore constitutes internal taxation within the meaning of Article 95.
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44. Such a pilot is in a comparable situation to that of a younger pilot performing the same activity for the benefit of the same airline company and/or falling under the same collective agreement. The first pilot whose employment contract terminates automatically when he attains 60 years of age is treated in a less favourable manner, on grounds of his age, than the second.
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50. Although it is for the national legal order of each Member State to lay down the rules for the exercise of such powers, pursuant to the principle of procedural autonomy, that is so provided that such rules are not less favourable than those governing similar national actions and that they do not render practically impossible or excessively difficult the exercise of rights conferred by EU law, in particular by Regulation No 1383/2003 to the holders of intellectual property rights and to declarants, holders or owners of the goods concerned (see, to that effect, Case C‑429/12 Pohl EU:C:2014:12, paragraph 23 and the case-law cited).
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23. It is settled case-law that, in the absence of European Union rules in the field, it is for the national legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law, provided that such rules are not less favourable than those governing similar national actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness) (see, inter alia, Joined Cases C‑89/10 and C‑96/10 Q‑Beef and Bosschaert [2011] ECR I‑7819, paragraph 32 and the case-law cited).
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68. That said, it therefore needs to be examined whether and, if so, under what conditions the restriction at issue may be allowed on the basis of the justifications relied on by the Portuguese Republic.
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48. It must, however, be pointed out that that line of argument has been dismissed by the Court not only, as those governments claim, as regards the calculation of transfer duties payable in respect of the gift of an immovable property ( Mattner , paragraphs 35 to 38) but also as regards the calculation of inheritance tax payable in respect of such a property ( Jäger , paragraph 44; Eckelkamp and Others , paragraphs 61 to 63; and Arens-Sikken , paragraphs 55 to 57).
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55. In fact, the situation of the heirs of the deceased concerned in the main proceedings is comparable to that of any heir whose inheritance includes an immovable property situated in the Netherlands and left by a person who was residing in that State at the time of death.
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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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51. On the other hand, a national measure restricting freedom of establishment may be justified where it specifically relates to wholly artificial arrangements aimed at circumventing the application of the legislation of the Member State concerned (see to that effect ICI , paragraph 26; Case C-324/00 Lankhorst-Hohorst [2002] ECR I-11779, paragraph 37; De Lasteyrie du Saillant , paragraph 50; and Marks & Spencer , paragraph 57).
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50. As regards justification based on the aim of preventing tax avoidance, referred to by the national court in its question, it should be noted that Article 167a of the CGI is not specifically designed to exclude from a tax advantage purely artificial arrangements aimed at circumventing French tax law, but is aimed generally at any situation in which a taxpayer with substantial holdings in a company subject to corporation tax transfers his tax residence outside France for any reason whatever (see, to that effect, ICI , paragraph 26, and X and Y , paragraph 61).
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106. S’agissant de la proposition de la Commission d’imposer une astreinte de nature dégressive, il convient de relever que, même si pour garantir l’exécution complète de l’arrêt de la Cour, l’astreinte doit être exigée dans son intégralité jusqu’à ce que l’État membre ait pris toutes les mesures nécessaires pour mettre fin au manquement constaté, dans certains cas spécifiques, toutefois, une sanction qui tient compte des progrès éventuellement réalisés par l’État membre dans l’exécution de ses obligations peut être envisagée (arrêts Commission/Grèce, C‑378/13, EU:C:2014:2405, point 60, et Commission/Italie, C‑196/13, EU:C:2014:2407, point 106).
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1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 3 OCTOBER AND 2 DECEMBER 1983 MR GEIST , A SCIENTIFIC OFFICER AT THE JOINT RESEARCH CENTRE AT ISPRA , CLAIMS REVISION OF THE JUDGMENT IN CASE 285/81 OF 6 JULY 1983 BY WHICH THE COURT ( THIRD CHAMBER ) DISMISSED THE ACTION FOR ANNULMENT COMMENCED BY THE APPLICANT ON 3 NOVEMBER 1981 . THE TWO APPLICATIONS SEEK THE REVISION , ON THE ONE HAND , OF PARAGRAPH 12 AND , ON THE OTHER HAND , OF PARAGRAPHS 24 AND 25 OF THE AFORESAID JUDGMENT .
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24 IN THAT RESPECT IT SHOULD BE BORNE IN MIND THAT AFTER TAKING NOTE OF THE OPINION OF MR GEIST ' S OWN DOCTOR GIVEN ON 13 NOVEMBER 1980 AND AFTER EXAMINING HIM PERSONALLY , DR DE GEYTER CONCLUDED ON 15 NOVEMBER 1980 THAT MR GEIST ' S ABSENCE FROM WORK WAS NOT DUE TO MEDICAL REASONS BUT TO THE FACT THAT IT HAD NOT BEEN POSSIBLE TO RESOLVE THE CONFLICT WHICH HAD EXISTED FOR YEARS BETWEEN HIM AND HIS ADMINISTRATION . THERE IS NOTHING IN THE FILE TO INDICATE THAT THAT MEDICAL EXAMINATION WAS NOT PROPERLY CONDUCTED . IT WAS THEREFORE FOR THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE TO INVITE MR GEIST , AS HE DID BY HIS LETTER OF 5 DECEMBER 1980 , TO RESUME HIS DUTIES AT ISPRA WITHOUT DELAY .
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116. Therefore, it is clear both from the objective of Directive 1999/70 and the Framework Agreement and from the wording of the relevant provisions thereof that, contrary to the submissions, in essence, made by the Greek Government and the Commission, the scope of the Framework Agreement is not limited solely to workers who have entered into successive fixed-term employment contracts; on the contrary, the agreement is applicable to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer ( Del Cerro Alonso , paragraph 28), irrespective of the number of fixed-term contracts entered into.
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46
The principle of non-discrimination requires comparable situations not to be treated differently and different situations not to be treated alike unless such treatment is objectively justified (see, to that effect, judgments of 6 December 2005 in ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraph 63, and 14 March 2013 in Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 42).
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42. That principle requires comparable situations not to be treated differently and different situations not to be treated alike unless such treatment is objectively justified (Case C‑313/04 Franz Egenberger [2006] ECR I‑6331, paragraph 33 and the case-law cited).
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64. Ainsi que la Cour l’a itérativement jugé, les mesures nationales susceptibles de gêner ou de rendre moins attrayant l’exercice des libertés fondamentales garanties par le traité ne peuvent être compatibles avec celui-ci que si elles remplissent quatre conditions, à savoir qu’elles s’appliquent de manière non discriminatoire, qu’elles se justifient par des raisons impérieuses d’intérêt général, qu’elles soient propres à garantir la réalisation de l’objectif légitime qu’elles poursuivent et qu’elles n’aillent pas au-delà de ce qui est nécessaire pour l’atteindre (voir, en ce sens, arrêt du 11 juin 2009, Commission/Autriche, C-564/07, point 31 et jurisprudence citée).
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36. Thus, in order to exclude such direct public representation and performance from the scope of the concept of ‘communication to the public’ in the context of Directive 2001/29, that recital explained that communication to the public covers all communication to the public not present at the place where the communication originates (see Football Association Premier League and Others , paragraph 202).
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202. Thus, in order to exclude such direct public representation and performance from the scope of the concept of communication to the public in the context of the Copyright Directive, recital 23 in its preamble explained that communication to the public covers all communication to the public not present at the place where the communication originates.
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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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38. According to settled case-law, the exemptions provided for in Article 13 of the Sixth Directive have their own independent meaning in Community law which must be given a Community definition whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (see, particularly, Case C-358/97 Commission v Ireland [2000] ECR I-6301, paragraph 51; Case C‑428/02 Fonden Marselisborg Lystbådehavn [2005] ECR I-1527, paragraph 27; and Joined Cases C‑394/04 and C-395/04 Ygeia [2005] ECR I‑0000, paragraph 15).
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27. According to settled case-law, the exemptions provided for in Article 13 of the Sixth Directive have their own independent meaning in Community law which must therefore be given a Community definition (see Case C-358/97 Commission v Ireland [2000] ECR I-6301, paragraph 51; Case C-315/00 Maierhofer [2003] ECR I-563, paragraph 25; Case C-275/01 Sinclair Collis [2003] ECR I-5965, paragraph 22; and Case C-284/03 Temco Europe [2004] ECR I-0000, paragraph 16) .
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20 FOR THIS PURPOSE NOT ONLY MUST THE DURATION OF PERIODS OF ACTIVITY BE CONSIDERED, BUT ALSO THE NATURE OF THE EMPLOYMENT IN QUESTION .
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57. In that regard, it should be noted that the referring court does not rely on economic grounds in order to be authorised to maintain the effects of the contested order, but refers only to the objective of protecting the environment, which constitutes one of the essential objectives of the European Union and is both fundamental and cross-cutting in nature (see, to that effect, Case C‑176/03 Commission v Council [2005] I‑7879, paragraphs 41 and 42).
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42. Furthermore, in the words of Article 6 EC ‘[e]nvironmental protection requirements must be integrated into the definition and implementation of the Community policies and activities’, a provision which emphasises the fundamental nature of that objective and its extension across the range of those policies and activities.
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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. With regard, second, to the question whether the sanction provided for in Article 13(4) of Regulation No 97/95 is effective, proportionate and dissuasive, the Court has consistently held that, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, in particular, Case C-426/93 Germany v Council [1995] ECR I-3723, paragraph 42, and Case C-26/00 Netherlands v Commission [2005] ECR I-0000, paragraph 126).
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126. So far as concerns the principle of proportionality, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it ( Antillean Rice Mills and Others v Commission , paragraph 52).
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34. In that regard it is apparent from the wording of Article 2(2)(5) of Regulation No 1924/2006 that the starting-point for the definition of a ‘health claim’ within the meaning of that regulation is the relationship that must exist between a food or one of its constituents and health. That being the case, it must be noted that that definition provides no information as to whether that relationship must be direct or indirect, or as to its intensity or duration. In those circumstances, the term ‘relationship’ must be understood in a broad sense.
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22. However, a transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system (see, inter alia, CPP , paragraph 29; Aktiebolaget NN , paragraph 22; and Case C‑242/08 Swiss Re Germany Holding [2009] ECR I‑10099, paragraph 51).
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51. Furthermore, with regard to the exemption of the abovementioned transaction on the basis that it could be considered as a combination of dealing within the meaning of Article 13B(d)(2) of the Sixth Directive and a transaction concerning debts within the meaning of Article 13B(d)(3), it should be noted that, according to the case-law of the Court, every supply of a service must normally be regarded as distinct and independent and that a supply which comprises a single service from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system (see CPP , paragraph 29, and Ludwig , paragraph 17).
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68. Although the time-limits prescribed by those articles are mandatory (see, to that effect, Molkereigenossenschaft Wiedergeltingen , paragraphs 38 to 40), the fact remains that they do not preclude the competent authorities of a Member State from making after-the-event checks and corrections for the purpose of ensuring that that Member State’s production does not exceed the guaranteed global quantity allocated to it.
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39. It is only when the grounds for exclusion concerned do not relate to the professional qualities of economic operators, and, therefore, do not fall within that exhaustive list that it is possible to consider whether those grounds may be permissible under the principles or other rules of EU public procurement law (see, to this effect, Fabricom , paragraphs 25 to 36; Michaniki , paragraphs 44 to 69; and Case C-538/07 Assitur [2009] ECR I-4219, paragraphs 21 to 33).
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26. In that regard, it must be borne in mind that the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives, which are intended in particular to promote the development of effective competition in the fields to which they apply and which lay down criteria for the award of contracts which are intended to ensure such competition (Case C-513/99 Concordia Bus Finland [2002] ECR I-7213, paragraph 81 and the case-law cited there).
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74
Since the preliminary annual number of allowances granted free of charge to industrial installations corresponds, in accordance with Article 10(2) of Decision 2011/278, inter alia, to the value of the benchmarks referred to in Annex I of that decision, including those for coke, hot metal and sintered ore, multiplied by the relevant product-related historical activity level, that number increased in accordance with the adaptations made by the Commission. However, in so far as the waste gases were combusted by electricity generators, the corresponding emissions were not taken into account when establishing the maximum annual amount of allowances.
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23
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 (judgment of 18 May 2011 in Delphi Deutschland, C‑423/10, EU:C:2011:315, paragraph 24 and the case-law cited).
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24. The explanatory notes drawn up by the European Commission as regards the CN and by the World Customs Organisation as regards the Harmonised Commodity Description and Coding System are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force ( X , paragraph 16 and case-law cited).
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51. It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.
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18 As the Court has consistently held (see, in particular, Case 29/76 LTU v Eurocontrol [1976] ECR 1541, paragraphs 3 and 4; Case 133/78 Gourdain v Nadler [1979] ECR 733, paragraph 3; and Case 814/79 Netherlands v Rueffer [1980] 3807, paragraphs 7 and 8), the concept of "civil matters" in Article 1 of the Convention must be regarded as an independent concept to be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems.
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8 IN THE LIGHT OF THOSE CONSIDERATIONS THE COURT HAS SPECIFICALLY HELD IN THAT SAME CASE-LAW THAT WHILST CERTAIN JUDGMENTS GIVEN IN AN ACTION BETWEEN A PUBLIC AUTHORITY AND A PERSON GOVERNED BY PRIVATE LAW MAY COME WITHIN THE AREA OF APPLICATION OF THE CONVENTION THAT IS NOT THE CASE IF THE PUBLIC AUTHORITY IS ACTING IN THE EXERCISE OF ITS PUBLIC AUTHORITY POWERS .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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20. It must be noted that, in accordance with the case-law of the Court, a public distancing is necessary in order that an undertaking which participated in collusive meetings can prove that its participation was without any anti-competitive intention. For that purpose, the undertakings must demonstrate that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (judgment in Aalborg Portland and Others v Commission , C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 81 and 82 and the case-law cited).
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82. The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it.
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58. It must be held that that difference in treatment with regard to the deferral of taxation of the capital gains at issue is liable to give rise to a cash-flow disadvantage for the taxable person wishing to reinvest those capital gains in order to acquire replacement assets intended for a permanent establishment located within the territory of a Member State other than the Federal Republic of Germany, in comparison with a taxable person who carries out a similar reinvestment in a permanent establishment located within German territory.
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22. As a preliminary point, it should be borne in mind that Article 29 EC provides that quantitative restrictions on exports and all measures having equivalent effect are prohibited between Member States. It is established case‑law that that provision is recognised as having direct effect and, therefore, conferring rights on individuals which the national courts must protect (see, to that effect, Case 83/78 Redmond [1978] ECR 2347, paragraphs 66 and 67, and Case C‑47/90 Delhaize and Le Lion [1992] ECR I‑3669, paragraph 28).
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66IT SHOULD FURTHER BE STATED IN REPLY TO THE QUESTIONS RAISED BY THE RESIDENT MAGISTRATE THAT ALL THE PROVISIONS QUOTED ARE DIRECTLY APPLICABLE AND THAT AS SUCH THEY CONFER ON INDIVIDUALS RIGHTS WHICH THE COURTS OF MEMBER STATES MUST PROTECT .
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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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56. It is settled case-law since the judgment in Case 8/74 Dassonville [1974] ECR 837, paragraph 5) that those provisions, taken in their context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to trade flows in intra-Community trade (see, to that effect, Case C-265/95 Commission v France [1997] ECR I-6959, paragraph 29).
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29 That provision, taken in its context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to flows of imports in intra-Community trade.
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41. If the European order for payment is not served in a manner consistent with the minimum standards laid down in Articles 13 to 15 of Regulation No 1896/2006, the defendant does not receive the forms mentioned in paragraph 40 of this judgment and, as a result, is not properly informed of the existence and basis of the European order for payment issued against him. In such a case, the defendant does not necessarily have all the information necessary to enable him to decide whether or not to oppose that order.
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17. Having regard to the case-law of the Court, it is necessary to examine the rules relating to the existence and operation of the monopoly with reference to Article 31 EC, which is specifically applicable to the exercise, by a domestic commercial monopoly, of its exclusive rights (see Case 91/75 Miritz [1976] ECR 217, paragraph 5; Case 120/78 REWE-Zentral [1979] ECR 649, ‘Cassis de Dijon’ , paragraph 7; Case 91/78 Hansen [1979] ECR 935, paragraphs 9 and 10; Case C‑387/93 Banchero [1995] ECR I‑4663, paragraph 29; and Case C‑189/95 Franzén [1997] ECR I‑5909, paragraph 35).
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7IT SHOULD BE NOTED IN THIS CONNEXION THAT ARTICLE 37 RELATES SPECIFICALLY TO STATE MONOPOLIES OF A COMMERCIAL CHARACTER .
THAT PROVISION IS THEREFORE IRRELEVANT WITH REGARD TO NATIONAL PROVISIONS WHICH DO NOT CONCERN THE EXERCISE BY A PUBLIC MONOPOLY OF ITS SPECIFIC FUNCTION - NAMELY , ITS EXCLUSIVE RIGHT - BUT APPLY IN A GENERAL MANNER TO THE PRODUCTION AND MARKETING OF ALCOHOLIC BEVERAGES , WHETHER OR NOT THE LATTER ARE COVERED BY THE MONOPOLY IN QUESTION .
THAT BEING THE CASE , THE EFFECT ON INTRA-COMMUNITY TRADE OF THE MEASURE REFERRED TO BY THE NATIONAL COURT MUST BE EXAMINED SOLELY IN RELATION TO THE REQUIREMENTS UNDER ARTICLE 30 , AS REFERRED TO BY THE FIRST QUESTION .
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51. Il y a lieu, à titre liminaire, de rappeler que la suppression d’une aide illégale par voie de récupération est la conséquence logique de la constatation de son illégalité et que cette conséquence ne saurait dépendre de la forme dans laquelle l’aide a été octroyée (arrêt Commission/Italie, C‑411/12, EU:C:2013:832, point 25 et jurisprudence citée).
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23. The matter would be different only if the provision of Community law which was submitted for interpretation by the Court was not applicable to the facts of the main proceedings, which had occurred before the accession of a new Member State to the Union (see, to this effect, Case C‑302/04 Ynos [2006] ECR I‑371, paragraphs 35 and 36) or if such provision was manifestly incapable of applying (see Reisdorf , paragraph 16).
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36. The Court has jurisdiction to interpret the Directive only as regards its application in a new Member State with effect from the date of that State’s accession to the European Union (see, to that effect, Case C-321/97 Andersson and Wåkerås-Andersson [1999] ECR I-3551, paragraph 31).
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51. Cet objectif, ainsi que la Cour l’a déjà souligné, a notamment pour objet de sauvegarder la symétrie entre le droit d’imposition des bénéfices et la faculté de déduction des pertes (voir arrêts précités Lidl Belgium, point 33, et Philips Electronics UK, point 24), en particulier afin de prévenir que le contribuable choisisse librement l’État membre où faire valoir de tels bénéfices ou de telles pertes (voir, en ce sens, arrêts précités Oy AA, point 56, et Lidl Belgium, point 34).
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34. In that regard, the Court has consistently held that Article 39 EC precludes, first, overt discrimination by reason of nationality and all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (Case C‑279/93 Schumacker [1995] ECR I‑225, paragraph 26) and that that article prohibits, second, provisions which preclude or deter a national of a Member State from leaving his country of origin to exercise his right to freedom of movement (Case C‑385/00 Groot [2002] ECR I‑11819, paragraph 78).
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78. Provisions which preclude or deter a national of a Member State from leaving his country of origin to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (Case C-10/90 Masgio [1991] ECR I-1119, paragraphs 18 and 19, and Terhoeve , paragraph 39, and Sehrer , cited above, paragraph 33).
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À cet égard, il convient de relever que la décision de poursuite ou de renonciation à un recours en manquement relève de la compétence exclusive de la Commission (voir arrêt du 7 février 1979, France/Commission, 15/76 et 16/76, EU:C:1979:29, point 27) et qu’il n’appartient pas, dès lors, à la Cour de statuer sur une telle demande.
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53
So, while, as the General Court correctly observed in paragraph 38 of the judgment under appeal, in the exercise of the powers conferred on them the EU authorities have broad discretion in particular where they are called on to undertake complex assessments and evaluations, it must first be determined whether they are indeed acting within the limits of the powers given to them and, more particularly, in a case such as the present one concerning a delegated power under Article 290 TFEU, it must be ascertained whether the EU authorities have exceeded the powers conferred on them by the enabling act, bearing in mind in particular that such a delegated power must in any event comply with the essential elements of the enabling act and come within the regulatory framework as defined by the basic legislative act (see, to that effect, judgment of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraph 30 and the case-law cited).
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30
In that regard, it is necessary, in the first place, to observe that, according to the case-law of the Court, it is clear from Article 290(1) TFEU that a legislative act may delegate to the Commission the power to adopt non-legislative acts of general scope which supplement or amend certain non-essential elements of the legislative act. In accordance with the second subparagraph of that provision, the objectives, content, scope and duration of the delegation of power must be explicitly defined in the legislative act granting such a delegation. That requirement implies that the purpose of granting a delegated power is to achieve the adoption of rules coming within the regulatory framework as defined by the basic legislative act (judgments in Commission v Parliament and Council, C‑427/12, EU:C:2014:170, paragraph 38, and in Commission v Parliament and Council, C‑88/14, EU:C:2015:499, paragraph 29).
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43. However, as the appellant rightly points out, their verification has limits.
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40
Secondly, as regards the scheme of Article 5 of Directive 2008/95, it should be noted that Article 5(3), which lists in a non-exhaustive manner the types of use which the trade mark proprietor may prohibit (see judgment in Google France et Google, C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 65 and the case-law cited), refers exclusively to active behaviour on the part of the third party, such as that of ‘affixing’ the sign on the goods and their packaging or ‘using’ it in business papers and advertising, ‘offering’ the goods, ‘putting them on the market’ or ‘stocking’ them for those purposes, ‘importing’ or ‘exporting’ them or ‘offering’ or ‘supplying’ services under that sign.
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65. In this connection, it should be borne in mind that Article 5(3) of Directive 89/104 and Article 9(2) of Regulation No 40/94 provide only a non-exhaustive list of the kinds of use which the proprietor may prohibit ( Arsenal Football Club , paragraph 38; Case C‑228/03 Gillette Company and Gillette Group Finland [2005] ECR I‑2337, paragraph 28; and Adam Opel , paragraph 16). Accordingly, the fact that the sign used by the third party for advertising purposes does not appear in the ad itself cannot of itself mean that that use falls outside the concept of ‘[use] … in relation to goods or services’ within the terms of Article 5 of Directive 89/104.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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18. In the absence of a Treaty definition of ‘movement of capital’ within the meaning of Article 56(1) EC, the Court has previously recognised the nomenclature set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [article repealed by the Treaty of Amsterdam] (OJ 1988 L 178, p. 5) as having indicative value. Movements of capital within the meaning of Article 56(1) EC therefore include direct investments, that is to say, as that nomenclature and the related explanatory notes show, investments of any kind undertaken by natural or legal persons and which serve to establish or maintain lasting and direct links between the persons providing the capital and the undertakings to which that capital is made available in order to carry out an economic activity (see, to that effect, Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraphs 179 to 181, and Case C‑157/05 Holböck [2007] ECR I‑0000, paragraphs 33 and 34). As regards shareholdings in new or existing undertakings, as those explanatory notes confirm, the objective of establishing or maintaining lasting economic links presupposes that the shares held by the shareholder enable him, either pursuant to the provisions of the national laws relating to companies limited by shares or in some other way, to participate effectively in the management of that company or in its control (see Test Claimants in the FII Group Litigation , paragraph 182, and Holböck , paragraph 35; see also C‑367/98 Commission v Portugal [2002] ECR I‑4731, paragraph 38; Case C‑483/99 Commission v France [2002] ECR I‑4781, paragraph 37; Case C‑503/99 Commission v Belgium [2002] ECR I‑4809, paragraph 38; Case C‑463/00 Commission v Spain [2003] ECR I‑4581, paragraph 53; Case C‑98/01 Commission v United Kingdom [2003] ECR I‑4641, paragraph 40; Case C‑174/04 Commission v Italy [2005] ECR I‑4933, paragraph 28; and Commission v Netherlands , paragraph 19).
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181. As that list and the relative explanatory notes show, the concept of direct investments concerns investments of any kind undertaken by natural or legal persons and which serve to establish or maintain lasting and direct links between the persons providing the capital and the undertakings to which that capital is made available in order to carry out an economic activity.
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21 On that point, it should be noted that the purpose of Article 5(6) of the Sixth Directive is to ensure equal treatment as between a taxable person who applies business assets for private purposes and an ordinary consumer who purchases goods of the same type (see Case C-20/91 De Jong [1992] ECR I-2847, paragraph 15, and Case C-230/94 Enkler [1996] ECR I-4517, paragraph 33).
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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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52. Regulation No 261/2004 has, in those measures, the objective of repairing, inter alia, damage consisting, for the passengers concerned, in a loss of time which, given that it is irreversible, can be redressed only by compensation.
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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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34. Secondly, Article 28(3)(d) of the Sixth Directive, whilst it precludes the introduction of new exemptions or an extension of the scope of existing exemptions following the entry into force of the Sixth Directive, does not prevent a reduction in their scope, given the transitional nature of the derogation for which it provides (see, by analogy, Commission v France , paragraph 21).
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21 In order to assess whether the amendment of the national legislation at issue is compatible with the provisions of the Sixth Directive, reference should be made to the judgment in Case C-136/97 Norbury Developments [1999] ECR I-2491, which concerned another transitional provision of the Sixth Directive, namely Article 28(3)(b) concerning VAT exemptions. In that judgment, the Court held that amendments made to the legislation of a Member State which did not increase the scope of VAT exemption but, rather, reduced it, did not breach the terms of that article. Whilst that article precludes the introduction of further exemptions or an increase in the scope of exemptions existing before the entry into force of the Sixth Directive, it does not prevent their reduction, since their abolition is the objective of Article 28(4) of the Sixth Directive (see Norbury Developments, cited above, paragraph 19).
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57. In particular, in so far as it is merely the manifestation of an ipso jure legal effect of the concept of an ‘undertaking’, the EU law concept of joint and several liability for payment of a fine concerns only the undertaking itself and not the companies of which it is made up.
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56. Furthermore, the fact that a Member State does not grant to a non-resident certain tax benefits which it grants to a resident is not, as a rule, discriminatory, having regard to the objective differences between the situations of residents and of non-residents from the point of view both of the source of their income and of their personal ability to pay tax or their personal and family circumstances ( Schumacker , paragraph 34; Gschwind , paragraph 23; Case C-234/01 Gerritse [2003] ECR I‑5933, paragraph 44; and Wallentin , paragraph 16).
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44. Also, the fact that a Member State does not grant to a non-resident certain tax benefits which it grants to a resident is not, as a rule, discriminatory having regard to the objective differences between the situations of residents and of non-residents, from the point of view both of the source of their income and of their personal ability to pay tax or their personal and family circumstances (Schumacker , paragraph 34; Gschwind , paragraph 23).
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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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115. As regards the failure by the General Court to order measures of inquiry, it should be borne in mind that, according to well‑established case‑law, the General Court is the sole judge of any need to supplement the information available to it concerning the cases before it. The question whether the procedural documents before it are convincing is a matter to be appraised by it alone, which, again according to well‑established case‑law, is not subject to review by the Court of Justice, unless the facts or evidence have been distorted (see Case C‑119/97 P Ufex and Others v Commission [1999] ECR I‑1341, paragraph 66; and Case C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, paragraph 19).
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19 In that connection the Court of First Instance is the sole judge of any need for the information available to it concerning the cases before it to be supplemented. Whether or not the evidence before it is convincing is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where the clear sense of that evidence has been distorted or the substantive inaccuracy of the Court of First Instance's findings is apparent from the documents in the case-file (judgment in Case C-119/97 P Ufex and Others v Commission [1999] ECR I-1341, paragraph 66, and order in Case C-437/98 P Infrisa v Commission [1999] ECR I-7145, paragraph 34).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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17. It must be recalled at the outset that, within the framework of the VAT system, taxable transactions presuppose the existence of a transaction between the parties in which a price or consideration is stipulated. Thus, where a person’s activity consists exclusively in providing services for no direct consideration, there is no basis of assessment and the services are therefore not subject to VAT (see Case C‑246/08 Commission v Finland [2009] ECR I‑10605, paragraph 43).
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43. In that connection, it is clear from the case-law of the Court that, within the framework of the VAT system, taxable transactions presuppose the existence of a transaction between the parties in which a price or consideration is stipulated. Thus, where a person’s activity consists exclusively in providing services for no direct consideration, there is no basis of assessment and the services are therefore not subject to VAT (see Case 89/81 Hong Kong Trade Development Council [1982] ECR 1277, paragraphs 9 and 10; and Case C‑16/93 Tolsma [1994] ECR I‑743, paragraph 12).
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37 It therefore appears that, in addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not that substance is waste for the purposes of Directive 75/442 is the degree of likelihood that that substance will be reused, without any further processing prior to its reuse. If, in addition to the mere possibility of reusing the substance, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high. In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to `discard', but as a genuine product.
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50. It may be seen from Article 5(1)(c) and (d) of Regulation No 2988/95 that the total or partial removal of an advantage granted by Community rules, even if the operator has wrongly benefited from only a part of that advantage, constitutes an administrative penalty (see, to that effect, Bonda , paragraph 34). However, the case-law of the Court provides that a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis (see Case C-110/99 Emsland-Stärke [2000] ECR I-11569, paragraph 56; Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 52; and Case C-274/04 ED & F Man Sugar [2006] ECR I-3269, paragraph 15), and cannot, consequently, be imposed on the basis of those provisions alone (see, to that effect, SGS Belgium and Others , paragraph 43).
b) Relationship between the sectoral Regulations No 822/87 and No 1059/83 and Regulation No 2988/95
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34. Next, it may be seen from Article 5(1)(c) and (d) of Regulation No 2988/95 that the total or partial removal of an advantage granted by Community rules, even if the operator has wrongly benefited from only a part of that advantage, and the exclusion from or withdrawal of an advantage for a period subsequent to that of the irregularity constitute administrative penalties. Those two cases are referred to in Article 138(1) of Regulation No 1973/2004.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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46 As regards the first part of the question, it should be borne in mind first of all, that, according to settled case-law, the need for a uniform interpretation of Community regulations makes it impossible for the text of a provision to be considered in isolation but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (see, to that effect, Case C-296/95 EMU Tabac and Others [1998] ECR I-1605, at paragraph 36).
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36 Furthermore, to discount two language versions, as the applicants in the main proceedings suggest, would run counter to the Court's settled case-law to the effect that the need for a uniform interpretation of Community regulations makes it impossible for the text of a provision to be considered in isolation but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (see, in particular, Case 9/79 Koschniske [1979] ECR 2717, paragraph 6). Lastly, all the language versions must, in principle, be recognised as having the same weight and this cannot vary according to the size of the population of the Member States using the language in question.
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19 IF THE INTERESTED PARTIES ARE THUS BOUND TO OBSERVE A REASONABLE TIME-LIMIT WHERE THE COMMISSION REMAINS SILENT, THIS IS SO A FORTIORI ONCE IT IS CLEAR THAT THE COMMISSION HAS DECIDED TO TAKE NO ACTION .
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20 In order to rule on the merits of this complaint, it must be pointed out, first, that it is not disputed that where a Member State makes registration with the dental association, and therefore the practice by dentists of their profession, subject to the requirement that the persons concerned reside in the district of the professional association with which they seek registration, that constitutes a restriction on freedom of establishment and freedom of movement for workers in that such a requirement prevents dentists established or resident in another Member State from setting up a second dental surgery in the first State or practising as employees there (see, to that effect, in particular, Case C-106/91 Ramrath v Ministre de la Justice [1992] ECR I-3351, paragraphs 20 to 22 and 28).
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22 Consequently, the answer to the first question must be that the Treaty provisions on the right of establishment preclude a Member State from prohibiting a person from becoming established in its territory and practising as an auditor there on the grounds that that person is established and authorized to practise in another Member State.
The second and third questions
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57. However, having regard to the duty, set out in recital 7 in the preamble to that regulation, to cooperate to help ensure that VAT is correctly assessed, such a request may prove expedient, or even necessary.
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35
In that regard, the purpose of the rule that the addressee of an adverse decision must be placed in a position to submit his observations before that decision is adopted is, inter alia, to enable that person to correct an error or submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see, to that effect, judgment of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 47, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 37 and the case-law cited).
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47. In accordance with the Court’s case-law, the purpose of the rule that the addressee of an adverse decision must be placed in a position to submit his observations before that decision is adopted is to enable the competent authority effectively to take into account all relevant information. In order to ensure that the person concerned is in fact protected, the purpose of that rule is, inter alia, to enable that person to correct an error or submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see, to that effect, judgment in Sopropé , EU:C:2008:746, paragraph 49).
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28 It was indeed in the exercise of their national competence in matters of foreign and security policy that the Member States expressly decided to have recourse to a Community measure, which became the Sanctions Regulation, based on Article 113 of the Treaty.
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29. As regards, first, the purpose of the exemption at issue, it must be recalled that, so far as gambling is concerned, the Member States are not only free to lay down the conditions and limitations of the exemption provided for in Article 135(1)(i) of Directive 2006/112 ( Fischer , paragraph 25, and Linneweber and Akritidis , paragraph 23), but also have a discretion which allows them to prohibit activities of that kind, totally or partially, or to restrict them and to lay down more or less rigorous procedures for controlling them (Case C-275/92 Schindler [1994] ECR I‑1039, paragraph 61, and Case C-124/97 Läärä and Others [1999] ECR I‑6067, paragraph 35).
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35 However, the power to determine the extent of the protection to be afforded by a Member State on its territory with regard to lotteries and other forms of gambling forms part of the national authorities' power of assessment, recognised by the Court in paragraph 61 of the Schindler judgment. It is for those authorities to assess whether it is necessary, in the context of the aim pursued, totally or partially to prohibit activities of that kind or merely to restrict them and, to that end, to establish control mechanisms, which may be more or less strict.
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33. In those circumstances, the mere fact that the liquidator is a party to the proceedings is not sufficient to classify the proceedings brought before the Landgericht Braunschweig as proceedings deriving directly from the insolvency and being closely linked to proceedings for realising assets.
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13 It should next be pointed out that mere apprehension of internal difficulties cannot justify a failure to comply with Community law (see, inter alia, Case C-52/95 Commission v France [1995] ECR I-4443, paragraph 38; Case C-265/95 Commission v France [1997] ECR I-0000, paragraph 55).
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55 Apprehension of internal difficulties cannot justify a failure by a Member State to apply Community law correctly (see, to that effect, Case C-52/95 Commission v France [1995] ECR I-4443, paragraph 38).
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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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67
In that regard, it should be recalled that, according to the Court’s settled case-law, the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment in InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 59 and the case-law cited).
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59. It should be recalled that, according to the settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment in E.ON Energie v Commission , C‑89/11 P, EU:C:2012:738, paragraph 64 and the case-law cited).
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15 Furthermore, although the essential purpose of Directive 65/65 may, as is indicated in the fourth recital in its preamble, be to remove obstacles to trade in proprietary medicinal products within the Community and although for that purpose Article 1 gives a definition of proprietary medicinal products and of medicinal products, it nevertheless constitutes merely a first stage in the approximation of national legislation on the production and distribution of pharmaceutical products.
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90
That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment (see, to that effect, judgments in Commission and Others v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraphs 53 and 56; Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 75; and Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77), and without the Court being bound by the indicative rules defined by the Commission in its guidelines (see, by analogy, judgment in Italy v Commission, C‑310/99, EU:C:2002:143, paragraph 52), even where the latter may give guidance to the EU Courts when they exercise their unlimited jurisdiction (see, to that effect, judgment in Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 80 and the case-law cited).
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75. Although it is for the Court, in the exercise of its unlimited jurisdiction in this regard, to assess for itself the circumstances of the case and the nature of the infringement in question in order to determine the amount of the fine, the exercise of unlimited jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 81(1) EC ( Commission v Verhuizingen Coppens , EU:C:2012:778, paragraph 80).
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44. However, the absence of any explicit indication to that effect does not in itself imply, irrespective of the wording of the provision concerned, that the Community legislature intended to require an obligation to guarantee rights to benefits in their entirety.
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58. In any event, the Court has already had occasion to state that a regulation specifying the conditions for classification in a tariff heading or subheading of the CN cannot have retroactive effect (see, to that effect, Siemens , 30/71, EU:C:1971:111, paragraph 8; Gervais-Danone , 77/71, EU:C:1971:129, paragraph 8; and Biegi , 158/78, EU:C:1979:87, paragraph 11).
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11WITH REGARD TO THE SECOND QUESTION , AS HAS BEEN STATED ABOVE , REGULATION NO 1669/77 WAS ADOPTED BY THE COMMISSION IN THE EXERCISE OF THE POWER , CONFERRED ON IT BY REGULATION NO 97/69 , TO SPECIFY THE CONTENT OF THE HEADINGS OR SUBHEADINGS OF THE COMMON CUSTOMS TARIFF BY MEANS OF MEASURES EFFECTING , SUBJECT TO THE CONDITIONS LAID DOWN IN ARTICLE 4 OF THE LATTER REGULATION , ' ' THE INCLUSION OF GOODS UNDER A PARTICULAR HEADING OR SUBHEADING ' ' .
A REGULATION SPECIFYING THE CONDITIONS FOR CLASSIFICATION IN A TARIFF HEADING OR SUBHEADING IS OF A LEGISLATIVE NATURE AND CANNOT HAVE RETROACTIVE EFFECT .
CONSEQUENTLY , COMMISSION REGULATION NO 1669/77 OF 25 JULY 1977 IS NOT BINDING ON NATIONAL COURTS WHICH HAVE TO DEFINE THE TARIFF CLASSIFICATION OF GOODS IMPORTED BEFORE ITS ENTRY INTO FORCE .
THIRD QUESTION
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26. In interpreting a provision of Community law, however, it is necessary to consider not only its wording, but also the context in which it occurs and the objects of the rules of which it is part ( De Jaeck , paragraph 17, and Case C-17/03 VEMW and Others [2005] ECR I-0000, paragraph 41).
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51. On the other hand, a national measure restricting freedom of establishment may be justified where it specifically relates to wholly artificial arrangements aimed at circumventing the application of the legislation of the Member State concerned (see to that effect ICI , paragraph 26; Case C-324/00 Lankhorst-Hohorst [2002] ECR I-11779, paragraph 37; De Lasteyrie du Saillant , paragraph 50; and Marks & Spencer , paragraph 57).
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37. As regards more specifically the justification based on the risk of tax evasion, it is important to note that the legislation at issue here does not have the specific purpose of preventing wholly artificial arrangements, designed to circumvent German tax legislation, from attracting a tax benefit, but applies generally to any situation in which the parent company has its seat, for whatever reason, outside the Federal Republic of Germany. Such a situation does not, of itself, entail a risk of tax evasion, since such a company will in any event be subject to the tax legislation of the State in which it is established (see, to that effect, ICI , cited above, paragraph 26).
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19 Proper protection of that kind is best assured if disputes relating to a contract of employment fall within the jurisdiction of the courts of the place where the employee discharges his obligations towards his employer. That is the place where it is least expensive for the employee to commence, or defend himself against, court proceedings.
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42. In order to provide a useful answer to the national court, it must be added that a request for clarification of a tender may be made only after the contracting authority has looked at all the tenders (see, to that effect, Lombardini and Mantovani , paragraphs 51 and 53).
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53 It is essential that each tenderer suspected of submitting an abnormally low tender should have the opportunity effectively to state his point of view in that respect, giving him the opportunity to supply all explanations as to the various elements of his tender at a time - necessarily after the opening of all the envelopes - when he is aware not only of the anomaly threshold applicable to the contract in question and of the fact that his tender has appeared abnormally low, but also of the precise points which have raised questions on the part of the contracting authority.
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52. The Treaty sought to give general scope and effect to the rule on the elimination of customs duties and charges having equivalent effect in order to ensure the free movement of goods (Joined Cases 2/69 and 3/69 Brachfeld and Chougol [1969] ECR 211, paragraph 12).
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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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30 The same is also true as regards the first indent of Article 6(1) of Decision No 1/80, since without a right of residence the grant to the Turkish worker, after one year' s legal employment, of the right to renewal of his permit to work for the same employer would likewise be deprived of any effect.
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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
It is settled case-law that national measures liable to hinder the exercise of fundamental freedoms guaranteed by the Treaty or make it less attractive may be allowed only if they pursue an objective in the public interest, are appropriate for ensuring the attainment of that objective and do not go beyond what is necessary to attain the objective pursued (see judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 29 and the case-law cited).
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29
It is settled case-law that national measures which are liable to hinder the exercise of fundamental freedoms guaranteed by the Treaty or make it less attractive may be allowed only if they pursue an objective in the public interest, are appropriate for ensuring the attainment of that objective and do not go beyond what is necessary to attain the objective pursued (see, inter alia, judgment of 12 September 2013 in Konstantinides, C‑475/11, EU:C:2013:542, paragraph 50).
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23 The cases to which the first method is stated to be applicable do not include Article 71(1)(a)(ii) of Regulation No 1408/71, which relates to unemployed frontier workers.
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55. Such an exemption would seriously interfere with the objective of Directive 85/337. Its effectiveness would be seriously compromised if the competent authorities of a Member State could, when deciding whether a project must be the subject of an environmental impact assessment, leave out of consideration that part of the project which is located in another Member State (see, by analogy, Case C‑227/01 Commission v Spain [2004] ECR I‑8253, paragraph 53).
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53. If the argument of the Spanish Government were upheld, the effectiveness of Directive 85/337 could be seriously compromised, since the national authorities concerned would need only to split up a long-distance project into successive shorter sections in order to exclude from the requirements of the Directive both the project as a whole and the sections resulting from that division.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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41. In a chapter which deals with the criteria for ‘qualitative’ selection, Article 24 identifies, in its first paragraph, seven grounds for excluding contractors from participation, relating to the professional qualities of the person concerned, more specifically his professional honesty, his solvency and his economic and financial capacity (see, by analogy, Case 76/81 Transporoute et travaux [1982] ECR 417, paragraph 9, and La Cascina and Others , paragraph 21).
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21. As regards that coordination, Article 29 of the Directive lays down seven grounds for excluding candidates from participation in a contract, which relate to their professional honesty, solvency and reliability. That provision leaves the application of all those cases of exclusion to the assessment of the Member States, as evidenced by the phrase ‘may be excluded from participation in a contract’, which appears at the beginning of that provision and makes express reference, in subparagraphs (e) and (f), to the provisions of national law.
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50. In the latter case, where the third party uses a sign which is similar to the trade mark in relation to goods or services identical with those for which the trade mark is registered, the trade mark proprietor can oppose the use of that sign only where there is a likelihood of confusion ( Google France and Google , paragraph 78, and BergSpechte , paragraph 22).
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15. At the outset it must be pointed out that, according to settled case‑law, although direct taxation falls within the competence of the Member States, the latter must none the less exercise that competence in a manner consistent with Community law (see Case C‑80/94 Wielockx [1995] ECR I‑2493, paragraph 16; Case C‑35/98 Verkooijen [2000] ECR I‑4071, paragraph 32; Case C‑334/02 Commission v France [2004] ECR I‑2229, paragraph 21; Case C‑315/02 Lenz [2004] ECR I‑7063, paragraph 19; and Case C‑319/02 Manninen [2004] ECR I‑7477, paragraph 19).
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32 It must be borne in mind at the outset that, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (Case C-80/94 Wielockx [1995] ECR I-2493, paragraph 16; Case C-264/96 ICI v Colmer (HMIT) [1998] ECR I-4695, paragraph 19; and Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651, paragraph 19).
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59 Second, it is clear from the fifth recital in the preamble to Directive 93/104 that the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations. However, the United Kingdom's argument is incontestably based on such a consideration.
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74. It is the impact sought on the undertaking concerned which justifies the size and overall resources of that undertaking being taken into consideration in order to ensure that the fine has sufficient deterrent effect, and the penalty must not be negligible in the light, particularly, of the financial capacity of that undertaking ( Lafarge v Commission , paragraph 104).
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104. It must be emphasised in this regard that the size and global resources of the undertaking in question being taken into consideration in order to ensure that the fine has sufficient deterrent effect resides in the impact sought on that undertaking, and the sanction must not be negligible in the light, particularly, of its financial capacity.
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92. Afin de répondre à l’argumentation avancée, il convient de relever, à titre liminaire, que la Commission bénéficie d’un large pouvoir d’appréciation pour ce qui est de la méthode de calcul des amendes en cas de violation des règles de l’Union en matière de concurrence. Cette méthode comporte différents éléments de flexibilité permettant à la Commission d’exercer son pouvoir d’appréciation en conformité avec les dispositions de l’article 23, paragraphes 2 et 3, du règlement n° 1/2003 (voir arrêt du 3 septembre 2009, Papierfabrik August Koehler e.a./Commission, C‑322/07 P, C‑327/07 P et C‑338/07 P, Rec. p. I‑7191, point 112 ainsi que jurisprudence citée).
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72. For reasons comparable to those set out in detail by the Court in the judgment in LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 52 to 65), the Commission was entitled to consider that the full disclosure of the contested studies which, when the express decision was adopted, had already led it to send a letter of formal notice to a Member State, under the first paragraph of Article 258 TFEU, and had, consequently, been placed in a file relating to the pre-litigation stage of infringement proceedings, would have been likely to disturb the nature and progress of that stage of proceedings, by making more difficult both the process of negotiation between the Commission and the Member State and the pursuit of an amicable agreement whereby the alleged infringement could be brought to an end, without it being necessary to resort to the judicial stage of those proceedings. The Commission was, consequently, justified in considering that such full disclosure would have undermined the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
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60. Furthermore, in accordance with well-established case-law, a complainant in the context of an infringement procedure does not have the right to require the Commission to take a specific position and to bring an action against its refusal to take action against a Member State (see, to that effect, in particular, the judgments in Case 247/87 Star Fruit v Commission [1989] ECR I-291, paragraph 11, and Case C-87/89 Sonito and Others v Commission [1990] ECR I-1981, paragraph 6, and the order of 14 July 2011 in Case C-111/11 P Ruipérez Aguirre and ATC Petition v Commission , paragraphs 11 and 12). In that regard, it is irrelevant whether the complainant is acting to defend a personal interest or a public interest.
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34. Such a rule goes beyond what is necessary to attain the objective of equal treatment for all tenderers.
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51
As regards, in the first place, the objective of ensuring the balanced allocation of powers to impose taxes between Member States, it should be recalled, first, that that is a legitimate objective recognised by the Court, and that, second, it is settled case-law that, in the absence of any unifying or harmonising measures of the European Union, the Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, with a view to eliminating double taxation (judgment of 16 April 2015, Commission v Germany, C‑591/13, EU:C:2015:230, paragraph 64 and the case-law cited).
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64. As regards, first of all, the justification based on the need to preserve the balanced allocation of the power to impose taxes between Member States, it should be recalled, first, that that justification is a legitimate objective recognised by the Court, and that, second, it is settled case-law that, in the absence of any unifying or harmonising measures of the European Union, the Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, with a view to eliminating double taxation (judgment in DMC , C‑164/12, EU:C:2014:20, paragraphs 46 and 47 and the case-law cited).
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24 IT IS APPROPRIATE TO POINT OUT IN THAT REGARD THAT , IN THE FIRST PLACE , THE FACT THAT REGULATION NO 3016/78 IS SPECIFIC TO THE SUGAR MARKET AND THAT APPARENTLY THERE ARE NO SIMILAR PROVISIONS FOR OTHER MARKET SECTORS CANNOT BE DESCRIBED AS DISCRIMINATION . IT IS SUFFICIENT TO NOTE THAT EACH OF THE COMMON ORGANIZATIONS OF THE MARKET EMBODIES FEATURES SPECIFIC TO IT AND THE ORGANIZATION OF THE MARKET IN SUGAR IS MOREOVER CHARACTERIZED BY THE PARTICULARLY COMPLEX NATURE OF ITS PROVISIONS . AS A RESULT , A COMPARISON OF THE TECHNICAL RULES AND PROCEDURES ADOPTED IN ORDER TO REGULATE THE VARIOUS SECTORS OF THE MARKET CANNOT CONSTITUTE A VALID BASIS FOR THE PURPOSE OF PROVING THE COMPLAINT OF DISCRIMINATION BETWEEN DISSIMILAR PRODUCTS , WHICH ARE SUBJECT TO DIFFERENT RULES AND WHICH , MOREOVER , IN NO WAY COMPETE WITH EACH OTHER .
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163 In that regard, it must be borne in mind that the statement of reasons required by Article 190 of the Treaty must be appropriate to the nature of the measure in question. It must show clearly and unequivocally the reasoning of the institution which enacted the measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review (see Joined Cases C-63/90 and C-67/90 Portugal and Spain v Council [1992] ECR I-5073, paragraph 16; Case C-353/92 Greece v Council [1994] ECR I-3411, paragraph 19; and Joined Cases C-9/95, C-23/95 and C-156/95 Belgium and Germany v Commission [1997] ECR I-645, paragraph 44).
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16 As regards the alleged absence, in the statement of the reasons on which the contested regulation is based, of any details concerning the factual and legal reasons which prompted the Council to include certain Member States in the distribution and to exclude, in particular, the applicants, it must be borne in mind that the Court has consistently held that the statement of reasons required by Article 190 of the Treaty must be appropriate to the nature of the measure in question. It must show clearly and unequivocally the reasoning of the Community authority which adopted the measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. It is also apparent from the case-law that the statement of reasons on which a measure is based is not required to specify the various matters of fact and law dealt with in the measure, provided that the measure falls within the general scheme of the body of measures of which it forms part (see, in particular, the judgment in Case 250/84 Eridania v Cassa Conguaglio Zucchero [1986] ECR 117, paragraphs 37 and 38).
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55. Il convient également de rappeler qu’il est de jurisprudence constante que ces dispositions, en tant que dérogations aux règles visant à garantir l’effectivité des droits reconnus par le droit communautaire dans le secteur des marchés publics, doivent faire l’objet d’une interprétation stricte (voir, en ce sens, arrêts du 17 novembre 1993, Commission/Espagne, C‑71/92, Rec. p. I‑5923, point 36; du 18 mai 1995, Commission/Italie, C‑57/94, Rec. p. I‑1249, point 23; du 10 avril 2003, Commission/Allemagne, précité, point 58; du 14 septembre 2004, Commission/Italie, C‑385/02, Rec. p. I‑8121, point 19, et du 2 octobre 2008, Commission/Italie, C‑157/06, non encore publié au Recueil, point 23).
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