Datasets:

ngarneau

/

link_prediction_contrastive

like 0

62. Given that such notices are capable of enabling the persons concerned to identify the legal remedies available to them in order to challenge their designation in the lists concerned and the date when the period for bringing proceedings expires (Case C‑417/11 P Council v Bamba [2012] ECR I‑0000, paragraph 81), it is important that the appellants should not be able to defer the starting point of the period for bringing proceedings by relying on the fact that there was no direct communication or that they actually became aware of the contested measures at a later date. If such a possibility were, in the absence of force majeure , open to the appellants, it would jeopardise the very objective of a time-limit for bringing proceedings, which is to protect legal certainty by ensuring that European Union measures which produce legal effects may not indefinitely be called into question (see, inter alia, Case C‑178/95 Wiljo [1997] ECR I‑585, paragraph 19; Case C‑241/01 National Farmers’ Union [2002] ECR I‑9079, paragraph 34, and order of 15 November 2012 in Case C‑102/12 P Städter v ECB , paragraph 12).

34 According to settled case-law, a decision adopted by the Community institutions which has not been challenged by its addressee within the time-limit laid down by the fifth paragraph of Article 230 EC becomes definitive as against that person (see, inter alia, Commission v Belgium, cited above, paragraphs 20 to 24; Commission v Greece, cited above, paragraphs 9 and 10; TWD Textilwerke Deggendorf, paragraph 13, and Case C-239/99 Nachi Europe [2001] ECR I-1197, paragraph 29). Such a rule is based in particular on the consideration that the periods within which legal proceedings must be brought are intended to ensure legal certainty by preventing Community measures which produce legal effects from being called in question indefinitely (Wiljo, paragraph 19).

23. The Court also observed that, regarding the place of performance of the obligations arising from contracts for the sale of goods, the regulation, in the first indent of Article 5(1)(b), defines that criterion of a link autonomously, in order to reinforce the objectives of unification of the rules of jurisdiction and predictability. Accordingly, in such cases the place of delivery of the goods is established as the autonomous linking factor to apply to all claims founded on one and the same contract of sale ( Color Drack , paragraphs 24 and 26; Rehder , paragraph 33; and Car Trim , paragraphs 49 and 50).

115 Since the present case concerns an area — the improvement of the functioning of the internal market — which is not among those in respect of which the European Union has exclusive competence, it must be determined whether the objective of Directive 2014/40 could be better achieved at EU level (see, to that effect, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraphs 179 and 180).

179. It is to be noted, as a preliminary, that the principle of subsidiarity applies where the Community legislature makes use of Article 95 EC, inasmuch as that provision does not give it exclusive competence to regulate economic activity on the internal market, but only a certain competence for the purpose of improving the conditions for its establishment and functioning, by eliminating barriers to the free movement of goods and the freedom to provide services or by removing distortions of competition (see, to that effect, the tobacco advertising judgment, paragraphs 83 and 95).

48 Given the reasons explained in paragraph 44 of the Barber judgment for limiting its effects in time, it must be made clear that equality of treatment in the matter of occupational pensions may be claimed only in relation to benefits payable in respect of periods of service subsequent to 17 May 1990, the date of the Barber judgment, subject to the exception in favour of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law (paragraph 19).

69. In order to be justified in the light of Community law, the difference in treatment provided for by the Netherlands legislation must also be proportionate to the legitimate objective pursued by the national law. It may not go beyond what is necessary in order to attain that objective (see, inter alia, Case C‑158/07 Förster [2008] ECR I‑0000, paragraph 53).

53. That requirement must also be proportionate to the legitimate objective pursued by the national law in order to be justified in the light of Community law. It may not go beyond what is necessary in order to attain that objective.

22. Concerning that latter point, the Court notes as a preliminary observation that, as appears particularly from the third recital in its preamble, the directive seeks to eliminate any disadvantage resulting from the fact that tax provisions governing relations between parent companies and subsidiaries of different Member States are, in general, less favourable than those applicable to relations between parent and subsidiary companies of the same Member State, and thereby to facilitate the grouping together of companies at Community level (Case C-294/99 Athinaïki Zythopoiïa [2001] ECR I-6797, paragraph 25).

55. First of all, in the absence of harmonisation of a profession, Member States remain, in principle, competent to define the exercise of that profession but must, when exercising their powers in this area, respect the basic freedoms guaranteed by the Treaty (see, in particular, Case C-58/98 Corsten [2000] ECR I-7919, paragraph 31; Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 24; and Case C-294/00 Gräbner [2002] ECR I‑6515, paragraph 26).

31 Although in the absence of such harmonisation with regard to the activities at issue in the main proceedings the Member States retain, in principle, the power to define the conditions governing access to such activities, they must none the less, when exercising their powers in this area, respect both the basic freedoms guaranteed by Article 52 of the EC Treaty (now, after amendment, Article 43 EC) and Article 59 of the Treaty and the effectiveness of a directive laying down transitional measures (De Castro Freitas and Escallier, cited above, paragraph 23). That applies not only to the substantive conditions governing access to those activities, but also to the requirements of a procedural nature provided for by national law.

25 At paragraph 34 of that judgment, the Court therefore interpreted Article 1(3) of Directive 89/665 as meaning that an action for review by a tenderer whose bid has been unsuccessful cannot be declared inadmissible as a consequence of the examination of the preliminary plea of inadmissibility raised in the counterclaim filed by the successful tenderer, in the absence of a ruling as to whether the contract specifications are met by both the bids submitted.

71. That assessment is made when a public creditor grants payment facilities in respect of a debt payable to it by an undertaking, by applying, in principle, the private creditor test. That test, where applicable, is among the factors which the Commission is required to take into account for the purposes of establishing whether such aid exists (see, to that effect, Case C-342/96 Spain v Commission [1999] ECR I-2459, paragraph 46; Case C-256/97 DM Transport [1999] ECR I-3913, paragraph 24; and Commission v EDF , paragraphs 78 and 103).

78. However, it is also clear from settled case-law that the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 87 EC are not met if the recipient public undertaking could, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through State resources. In the case of public undertakings, that assessment is made by applying, in principle, the private investor test (see, to that effect, Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 20; Case C-482/99 France v Commission [2002] ECR I-4397, paragraphs 68 to 70; and Comitato ‘Venezia vuole vivere’ and Others v Commission, paragraph 91 and the case-law cited).

53. However, the Court reached that conclusion only after having found, on the basis of scientific data submitted to it, that some of the tasks of persons in the intermediate career of the fire service, such as fighting fires, required ‘exceptionally high’ physical capacities and that very few officials over 45 years of age have sufficient physical capacity to perform the fire-fighting part of their activities. In the Court’s view, recruitment at an older age would have the consequence that too large a number of officials could not be assigned to the most physically demanding duties. Similarly, such recruitment would not allow the officials thus recruited to be assigned to those duties for a sufficiently long period. Finally, the rational organisation of the professional fire service requires, for the intermediate career, a correlation between the physically demanding posts not suitable for older officials and the less physically demanding posts suitable for those officials (judgment in Wolf , EU:C:2010:3, paragraphs 41 and 43).

17. Article 9(1)(c) does permit authorisation, in compliance with the conditions set out in that provision, for the hunting of species listed in Annex II during the periods referred to in Article 7(4) of the Directive, inter alia during their return to their rearing grounds (see, to that effect, Case C-182/02 Ligue pour la protection des oiseaux and Others [2003] ECR I‑12105, paragraphs 9 to 11).

9. It therefore appears that Article 9(1)(c) of the Directive permits authorisation, in compliance with the conditions set out in that provision, of the capture, keeping or other judicious use of certain birds during the periods mentioned in Article 7(4) of the Directive, during which the survival of wild birds is at particular risk.

63. It is true that, according to the Court’s case-law, a call for competition is not compulsory for contracts concluded between a local authority and a person legally distinct from it, where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities (see, Teckal , paragraph 50, and Case C-84/03 Commission v Spain [2005] ECR I-139, paragraphs 38 and 39).

35. That consideration is also valid as regards the existence of distortion of competition. The fact that two identical or similar supplies which meet the same needs are treated differently for the purposes of VAT gives rise, as a general rule, to a distortion of competition (see, to that effect, Case C-404/99 Commission v France [2001] ECR I-2667, paragraphs 46 and 47, and Case C-363/05 JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies [2007] ECR I-5517, paragraphs 47 to 51).

50. In that regard, it is possible to provide the referring court with some further guidelines in the light of the information it sent to the Court. Thus, it must be held that, in any event, the management of AUTs and OEICs, which are collective investment undertakings as defined in the UCITS Directive, is exempt from VAT in the United Kingdom. Although, at present, ITCs are not collective investment undertakings within the meaning of the UCITS Directive, the fact remains that, as the referring court observes, AUTs, OEICs and ITCs are three forms of special investment which spread risk. In addition, the referring court considers that ITCs, like AUTs and OEICs, involve investment in securities through the intermediary of a collective investment undertaking which allows private investors to invest in wide-ranging investment portfolios and thus reduce the stock market risk.

188. Lastly, contrary to what the EFPIA submits, the taking into account of intellectual property rights for the purposes of finding that an undertaking has a dominant position does not mean that companies introducing innovative products on the market should refrain from acquiring a comprehensive portfolio of intellectual property rights or from enforcing those rights. It is sufficient to point out in that regard that a dominant position is not prohibited, only its abuse, and a finding that an undertaking has such a position is not in itself a criticism of the undertaking concerned (see, to that effect, Joined Cases C-395/96 P and C-396/96 P Compagnie maritime belge transports and Others v Commission [2000] ECR I-1365, paragraph 37, and TeliaSonera Sverige , paragraph 24).

34 Accordingly, the Court has held, in cases concerning jurisdiction in the field of patents, that, where the dispute concerns neither the validity of a patent nor the existence of its deposit or registration, the dispute is not covered by the concept of proceedings ‘concerned with the registration or validity of patents’ and therefore falls outside the exclusive jurisdiction of the courts of the Member State in which the right was registered (judgments of 15 November 1983, Duijnstee, 288/82, EU:C:1983:326, paragraphs 22 to 25, and of 13 July 2006, GAT, C‑4/03, EU:C:2006:457, paragraphs 15 and 16).

22 IN THAT REGARD , IT MUST BE NOTED THAT THE EXCLUSIVE JURISDICTION IN PROCEEDINGS CONCERNED WITH THE REGISTRATION OR VALIDITY OF PATENTS CONFERRED UPON THE COURTS OF THE CONTRACTING STATE IN WHICH THE DEPOSIT OR REGISTRATION HAS BEEN APPLIED FOR IS JUSTIFIED BY THE FACT THAT THOSE COURTS ARE BEST PLACED TO ADJUDICATE UPON CASES IN WHICH THE DISPUTE ITSELF CONCERNS THE VALIDITY OF THE PATENT OR THE EXISTENCE OF THE DEPOSIT OR REGISTRATION .

19 It should be recalled that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgments of 24 June 2008, Commune de Mesquer, C‑188/07, EU:C:2008:359, paragraph 30 and the case-law cited, and of 21 May 2015, Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 29).

62. A principle such as that proposed by Audiolux presupposes legislative choices, based on a weighing of the interests at issue and the fixing in advance of precise and detailed rules (see, by analogy, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraphs 18 to 20; Case 265/78 Ferwerda [1980] ECR 617, paragraph 9; and the order of 5 March 1999 in Case C‑153/98 P Guérin automobiles v Commission [1999] ECR I‑1441, paragraph 14 and 15) and cannot be inferred from the general principle of equal treatment.

9 THE COUNCIL HAS ADOPTED THIS APPROACH IN PARTICULAR BY ENACTING REGULATION ( EEC ) NO 1697/79 OF 24 JULY 1979 ON THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES WHICH HAVE NOT BEEN REQUIRED OF THE PERSON LIABLE FOR PAYMENT ON GOODS ENTERED FOR A CUSTOMS PROCEDURE INVOLVING THE OBLIGATION TO PAY SUCH DUTIES ( OFFICIAL JOURNAL 1979 , L 197 , P . 1 ) AND REGULATION ( EEC ) NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL 1979 , L 175 , P . 1 ) WHICH , HOWEVER , ARE ONLY TO ENTER INTO FORCE ON 1 JULY 1980 . THE ARRANGEMENTS ALREADY IN EXISTENCE AND THE ABOVE-MENTIONED PROVISIONS NEVERTHELESS PROVIDE ONLY A PARTIAL SOLUTION TO THE PROBLEMS CONCERNING THE EQUALITY OF PERSONS IN THIS SPHERE AND THE NECESSARILY TECHNICAL AND DETAILED NATURE OF SUCH PROVISIONS MEANS THAT A JUDICIAL INTERPRETATION CAN ONLY PROVIDE A PARTIAL REMEDY .

73. Furthermore, in the case which gave rise to the judgment in Pearle and Others , although the monies were collected by a professional body, the advertising campaign was organised by a private association of opticians, had a purely commercial purpose and had nothing to do with a policy determined by the authorities ( Pearle and Others , paragraphs 37 and 38). By contrast, in the case in the main proceedings, the payment of the amount of NLG 400 million to the designated company had been the subject of a decision by the legislature.

23 Furthermore, as regards the criticisms made of the Advocate General’s Opinion, it must be borne in mind, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited)..

30. Furthermore, as regards the criticisms made of the Advocate General’s Opinion, it must be borne in mind, firstly, that the Statute of the Court and the Rules of Procedure of the Court make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (order Emesa Sugar , C‑17/98, EU:C:2000:69, paragraph 2, and Döhler Neuenkirchen , C‑262/10, EU:C:2012:559, paragraph 29).

55 The same is true of the argument that the General Court found that PROAS had relied on the characteristic elements of the Spanish market by way of mitigating circumstances and not as factors illustrating the lesser seriousness of the infringement at issue. In fact, since the General Court carried out a review of PROAS’ claims relating to the characteristics of the Spanish market in the context of the assessment of mitigating circumstances, the General Court cannot, in any event, be criticised for not having examined them in the assessment of the seriousness of the infringement (see judgment of 5 December 2013 in Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraphs 78 and 79).

34. It should be borne in mind in that regard that the effectiveness of those State controls must be assessed by the national court in the light of the fact that a measure as restrictive as a monopoly must, inter alia, be subject to strict control by the public authorities (see, to that effect, Zeturf , paragraph 58).

58. The Court has already held in that regard that the establishment of a measure as restrictive as a monopoly must be accompanied by a legislative framework suitable for ensuring that the holder of the said monopoly will in fact be able to pursue, in a consistent and systematic manner, the objective thus determined by means of a supply that is quantitatively measured and qualitatively designed by reference to the said objective and subject to strict control by the public authorities ( Stoß and Others , paragraph 83).

37. In the case in the main proceedings, it is clear that a company incorporated under Netherlands law wishing to transfer its place of effective management outside Netherlands territory, in the exercise of its right guaranteed by Article 49 TFEU, is placed at a disadvantage in terms of cash flow compared to a similar company retaining its place of effective management in the Netherlands. In accordance with the national legislation at issue in the main proceedings, the transfer of the place of effective management of a Netherlands company to another Member State entails the immediate taxation of the unrealised capital gains relating to the assets transferred, whereas such gains are not taxed when such a company transfers its place of management within the Netherlands. The capital gains relating to the assets of a company transferring its place of management within the Netherlands are not taxed until they are actually realised and to the extent that they are realised. That difference of treatment relating to the taxation of capital gains is liable to deter a company incorporated under Netherlands law from transferring its place of management to another Member State (see, to that effect, de Lasteyrie du Saillant , paragraph 46, and N , paragraph 35).

89. It is apparent from the case-law of the Court of Justice that if a given operation or activity is not covered by the prohibition rule laid down in Article 81(1) EC, owing to its neutrality or positive effect in terms of competition, a restriction of the commercial autonomy of one or more of the participants in that operation or activity is not covered by that prohibition rule either if that restriction is objectively necessary to the implementation of that operation or that activity and proportionate to the objectives of one or the other (see to that effect, in particular, judgments in Remia and Others v Commission , 42/84, EU:C:1985:327, paragraphs 19 and 20; Pronuptia de Paris , 161/84, EU:C:1986:41, paragraphs 15 to 17; DLG , C‑250/92, EU:C:1994:413, paragraph 35, and Oude Luttikhuis and Others , C‑399/93, EU:C:1995:434, paragraphs 12 to 15).

15 With regard, next, to the effects of the agreements or the clauses in the statutes, a combination of clauses such as those requiring exclusive supply and payment of excessive fees on withdrawal, tying the members to the association for long periods and thereby depriving them of the possibility of approaching competitors, could have the effect of restricting competition.

29. Or, conformément à l’article 2, paragraphe 1, de la directive 2000/78, le principe de l’égalité de traitement consacré par cette directive s’applique en fonction des motifs énumérés de manière exhaustive à son article 1 er (voir, en ce sens, arrêt Coleman, C‑303/06, EU:C:2008:415, points 38 et 46), ce qui a amené la Cour à juger que ladite directive ne vise pas les discriminations fondées sur la catégorie professionnelle ou le lieu de travail (voir arrêt Agafiţei e.a., C‑310/10, EU:C:2011:467, point 35, ainsi que, en ce sens, ordonnance Rivas Montes, C‑178/12, EU:C:2013:150, point 44).

45. In accordance with settled case‑law, as regards the levying of VAT, the principle of fiscal neutrality precludes any general distinction between lawful and unlawful transactions (see, inter alia, Case 269/86 Mol [1988] ECR 3627, paragraph 18; Case C-158/98 Coffeeshop ‘Siberië’ [1999] ECR I-3971, paragraphs 14 and 21, and Joined Cases C-439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I-6161, paragraph 50). The Court concluded that Member States cannot reserve the exemption solely to lawful games of chance ( Fischer , paragraph 28). The lawful or unlawful nature of the operation of a game of chance thus cannot be taken into account in the examination of the similar nature of two games of chance.

28 As pointed out in paragraph 21 of this judgment, it is clear from the judgment in Lange that the principle of fiscal neutrality precludes a generalised distinction from being drawn in the levying of VAT between unlawful and lawful transactions. It follows that Member States cannot reserve the exemption solely to lawful games of chance.

13 As is apparent from the case-law of the Court, the concept of pay within the meaning of the second paragraph of Article 119 comprises any other consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer. The fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay within the meaning of Article 119 of the Treaty (see, in particular, the judgment in Case C-262/88 Barber [1990] ECR I-1889, paragraph 12).

111 Finally, the Court has held that the consequence of infringing that obligation is that the regulation by which the Council imposed anti-dumping duties, at the end of the investigation, is unlawful in so far as it imposes definitive anti-dumping duties, and definitively collects provisional anti-dumping duties, on the products from the producers concerned (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 43, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraph 37).

37. In those circumstances, the contested regulation must be annulled in so far as it concerns the appellant. The temporal effects of the present judgment

10 As a preliminary point, it should be noted that the Court has already held in Case C-130/92 OTO v Ministero delle Finanze [1994] ECR I-3281, paragraph 11, which concerned the interpretation of Community law with regard to the same Italian legislation, that a charge such as the national consumption tax at issue in the main proceedings must be regarded as an integral part of a general system of internal taxation within the meaning of Article 95 of the Treaty and that its compatibility with Community law must therefore be assessed on the basis of that article.

26 With regard, second, to the question whether services are supplied for consideration, the Court has already held that a supply of services is effected `for consideration' within the meaning of Article 2(1) of the Sixth Directive, and is therefore taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient (Case C-16/93 Tolsma v Inspecteur der Omzetbelasting [1994] ECR I-743, paragraph 14).

14 It follows that a supply of services is effected "for consideration" within the meaning of Article 2(1) of the Sixth Directive, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient.

46 In the second place, non-compliance with a formal requirement may lead to the refusal of an exemption from VAT if that non-compliance would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied (see, to that effect, judgments of 27 September 2007, Collée, C‑146/05, EU:C:2007:549, paragraph 31, and of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 46).

50. Quite apart from the principle of proportionality, a Member State which adopts protective measures in accordance with Directive 90/425 must comply with the obligations which that directive establishes and the procedure which it lays down. In that regard, the fifth subparagraph of Article 10(1) of that directive provides that the measures are to be communicated immediately to the Commission and the other Member States ( Lennox , paragraph 75; on the obligation to communicate without delay and to cooperate loyally where conservation measures are adopted on the basis of Article 8 of Directive 90/425, see Van den Bor , paragraphs 45 to 48; see also, by analogy, in relation to measures adopted on the basis of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395, p. 13), Case C-241/01 National Farmers’ Union [2002] ECR I‑9079, paragraph 60).

45 It should be noted that, under the third subsubparagraph of Article 8(1)(a) of that directive, the competent authorities of the Member State concerned are required immediately to notify the competent authorities of the other Member States and the Commission in writing, by the most appropriate means, of the findings arrived at, the decisions taken and the reasons for such decisions.

103. The concept of an undertaking has been defined by the European Union judicature and designates an economic unit even if in law that economic unit consists of several natural or legal persons (see, to this effect, Akzo Nobel and Others v Commission , paragraph 55, and Elf Aquitaine v Commission , paragraph 53 and the case-law cited).

55 That finding, first, ensures that Article 5(2) of Directive 2001/82, under which the MA holder is responsible for marketing the veterinary medicinal product concerned, is effective and, secondly, guarantees the essential aim of safeguarding public health, as is clear from recital 2 of that directive. A person who has obtained authorisation to import a veterinary medicinal product in parallel is best placed to bear, in respect of that medicinal product, the responsibilities connected with the marketing of the veterinary medicinal product in question. In addition, since MAs may be re-examined and may be cancelled, Member States must, in such cases, be able to ensure the withdrawal as soon as practicable of all the products concerned on their territory, which would not be possible if an MA was not personal and if, in circumstances such as those of the main proceedings, every livestock farmer wishing to import in parallel veterinary medicinal products for the needs of his livestock farm were not required to obtain an MA (see, by analogy as regards plant protection products, judgment of 8 November 2007, Escalier and Bonnarel, C‑260/06 and C‑261/06, EU:C:2007:659, paragraph 41).

41. Further, marketing authorisations may be re-examined and may be cancelled. In such cases, as stated by the Advocate General in point 50 of her Opinion and by the French Government, Member States must, depending on the reasons for cancellation of the authorisation, be able to ensure the withdrawal as soon as practicable of all the products concerned on their territory, which would not be possible if marketing authorisation was not personal and if only the first parallel import of a product was subject to a simplified marketing authorisation procedure.

27. A Member State thus has the power to define both the connecting factor required of a company if it is to be regarded as incorporated under its national law and as such capable of enjoying the right of establishment, and that required if the company is to be able subsequently to maintain that status ( Cartesio , paragraph 110). A Member State is therefore able, in the case of a company incorporated under its law, to make the company’s right to retain its legal personality under the law of that State subject to restrictions on the transfer abroad of the company’s place of effective management ( Überseering , paragraph 70).

13 It follows both from the title of the section in Regulation No 1408/71 of which Article 71 constitutes the sole article, and from the case-law of the Court, that the factor that determines whether Article 71 applies at all is the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment (see the judgments in Case 76/76 Di Paolo v Office National de l' Emploi [1977] ECR 315, paragraphs 17 and 21, in Case 128/83 Caisse Primaire d' Assurance Maladie de Rouen v Guyot [1984] ECR 3507, paragraph 9, and in Case 236/87 Bergemann v Bundesanstalt fuer Arbeit [1988] ECR 5125).

21 THE ADDITION OF THE WORDS ' OR WHO RETURNS TO THAT TERRITORY ' IMPLIES MERELY THAT THE CONCEPT OF RESIDENCE , SUCH AS DEFINED ABOVE , DOES NOT NECESSARILY EXCLUDE NON-HABITUAL RESIDENCE IN ANOTHER MEMBER STATE .

30. Selon une jurisprudence constante, constitue une restriction au sens de l’article 49 TFUE toute mesure nationale qui, même applicable sans discrimination tenant à la nationalité, est susceptible de gêner ou de rendre moins attrayant l’exercice, par les ressortissants de l’Union européenne, de la liberté d’établissement garantie par le traité (voir, en ce sens, arrêts du 14 octobre 2004, Commission/Pays-Bas, C‑299/02, Rec. p. I‑9761, point 15, et du 21 avril 2005, Commission/Grèce, C‑140/03, Rec. p. I‑3177, point 27).

35 At the outset, it should be noted that clause 5 of the framework agreement, the purpose of which is to implement one of the objectives of that agreement, namely to place limits on successive recourse to fixed-term employment contracts or relationships, requires Member States, in paragraph 1 thereof, to adopt one or more of the measures listed in a manner that is effective and binding, where domestic law does not include equivalent legal measures. The measures listed in Clause 5(1)(a) to (c), of which there are three, relate, respectively, to objective reasons justifying the renewal of such employment contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (see, to that effect, judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 73 and 74; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraphs 54 and 56, 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, paragraphs 72 and 74).

54. As regards Clause 5 of the Framework Agreement, it should be borne in mind that the purpose of paragraph 1 of that clause is to implement one of the objectives of that agreement, namely to place limits on successive recourse to fixed-term employment contracts or relationships, regarded as a potential source of abuse to the detriment of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure (see, in particular, Adeneler and Others , EU:C:2006:443, paragraph 63; Angelidaki and Others , EU:C:2009:250, paragraph 73; Deutsche Lufthansa , C‑109/09, EU:C:2011:129, paragraph 31; Kücük , EU:C:2012:39, paragraph 25; and Márquez Samohano , EU:C:2014:146, paragraph 41).

23 Equally, in order to enable Regulation No 1408/71 to apply to the future effects of situations arising under the period of validity of the old law, Article 94(2) imposes the obligation to take into consideration, for the purposes of determining rights to benefit, all periods of insurance, employment or residence completed under the legislation of any Member State before 1 October 1972 or before the date of its application in the territory of that Member State. It follows, therefore, from that provision that a Member State is not entitled to refuse to take into account periods of insurance completed in the territory of another Member State, for the purposes of establishment of a retirement pension, for the sole reason that they were completed before the entry into force of the regulation in its regard (Case C-227/89 Rönfeldt [1991] ECR I-323, paragraph 16, and Kauer, paragraph 22).

21. The legal relationship between Frahuil and Assitalia, the two parties governed by private law who are contesting the main proceedings, is a relationship governed by private law. According to the order for reference, the party which brought the action is exercising a legal remedy which is open to it through a legal subrogation provided for in a civil law provision. That action does not amount to the exercise of powers falling outside the scope of the rules applicable to relationships between private individuals, and must therefore be regarded as coming within the concept of " civil and commercial matters" within the meaning of the first paragraph of Article 1 of the Convention (see, to this effect, Préservatrice foncière TIARD , cited above, paragraph 36). The concept of matters relating to a contract According to settled case-law, the concept of " matters relating to a contract" is to be interpreted independently, regard being had to the objectives and general scheme of the Convention, in order to ensure that it is applied uniformly in all the Contracting States; that concept cannot therefore be taken to refer to classification under the relevant national law of the legal relationship in question before the national court (see in particular Case C-26/91 Handte v Traitements Mécano-Chimiques des Surfaces [1992] ECR I-3967, paragraph 10, Case C-51/97 Réunion européenne and Others [1998] ECR I-6511, paragraph 15, Case C-334/00 Tacconi [2002] ECR I-7357, paragraph 19, and Case C-167/00 Henkel [2002] ECR I-8111, paragraph 35).

36. In the light of all these considerations, the answer to the first question must be that the first paragraph of Article 1 of the Brussels Convention must be interpreted as meaning that "civil and commercial matters" , within the meaning of the first sentence of that provision, covers a claim by which a contracting State seeks to enforce against a person governed by private law a private-law guarantee contract which was concluded in order to enable a third person to supply a guarantee required and defined by that State, in so far as the legal relationship between the creditor and the guarantor, under the guarantee contract, does not entail the exercise by the State of powers going beyond those existing under the rules applicable to relations between private individuals. The second question referred for a preliminary ruling

29 In that regard, it is apparent from recitals 1 and 2 of Directive 2009/101 that the directive is intended to coordinate national provisions concerning disclosure, the validity of obligations entered into by, and the nullity of, companies limited by shares or otherwise having limited liability. As regards Directive 2012/30, recital 3 thereof states that the aim of that directive is to ensure minimum equivalent protection for both shareholders and creditors of public limited liability companies. To that end, that directive coordinates the national provisions relating to the formation of such companies, and to the maintenance, increase and reduction of their capital (see, concerning Directive 2012/30, judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 86).

28 A situation such as that in question in the main proceedings is, however, clearly different from that with which the judgment in Schumacker was concerned. Mr Schumacker's income formed almost the entire income of his tax household and neither he nor his spouse had any significant income in their State of residence allowing account to be taken of their personal and family circumstances. However, by laying down a percentage threshold and an absolute threshold for income respectively taxable in Germany and not subject to German tax, the German legislation takes account specifically of the possibility of taking into consideration, on a sufficient tax base, of the personal and family circumstances of taxpayers in the State of residence.

34 Consequently, 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 since those two categories of taxpayer are not in a comparable situation.

89. In that regard, the interpretation of provisions of national law is a matter for the national courts, under the cooperative arrangements established by Article 267 TFEU, not for the Court of Justice ( Placanica and Others , paragraph 36). However, it follows from the case‑law referred to in paragraphs 72 to 74 above that, under EU law, the conditions and detailed rules of a tendering procedure such as that at issue in the cases before the referring court must be drawn up in a clear, precise and unequivocal manner. That is not the case so far as Article 23(3) of the model contract is concerned, even in the light of the additional explanations provided by the AAMS at Stanley’s request.

119. In accordance with settled case-law, to prove to the requisite standard that an undertaking participated in a cartel, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 81).

81. According to settled case-law, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 155, and Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph 96).

17 Although applicable without distinction to all products, an obligation such as that imposed in the present case by Article 6(1)(1) of the Royal Decree is of a nature such as to hinder intra-Community trade. It may force the importer to alter the packaging of his products on the basis of the place where they are marketed and therefore to incur additional packaging and labelling costs (see, to that effect, Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR I-3879, paragraph 13; and Case C-33/97 Colim v Bigg's Continent Noord [1999] ECR I-3175, paragraph 36).

46. In that regard, the Court has already ruled on the meaning of ‘necessary adaptations’ in the context of acts of accession, holding that the adaptation measures provided for by such acts, as a general rule, authorise only adaptations intended to render earlier Community measures applicable in the new Member States, to the exclusion of all other amendments (see, to that effect, in relation to Article 169 of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21), Case C‑259/95 Parliament v Council [1997] ECR I‑5303, paragraphs 14 and 19; and, in respect of Article 57 of the Act of Accession, Case C‑413/04 Parliament v Council [2006] ECR I‑11221, paragraphs 31 to 38, and Case C‑414/04 Parliament v Council [2006] ECR I‑11279, paragraphs 29 to 36).

33. Furthermore, the grant of temporary derogations in view of the prospect of imminent accession is, as correctly pointed out by the Parliament and the Commission, the specific subject of another provision of the 2003 Act of Accession, namely Article 55, and it is, in that regard, difficult to imagine that the signatories to that act intended to lay down two distinct provisions for the purpose of enabling the adoption of the same measure.

36. In the case where a parent company holds 100% of its subsidiary’s capital, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see judgment in Akzo Nobel and Others v Commission , C‑97/08 P, EU:C:2009:536, paragraph 60 and the case-law cited).

18. The referring court is uncertain whether, as a carrier protein, Protein D can give rise to the grant of an SPC. On the basis of the judgment in Massachusetts Institute of Technology (C‑431/04, EU:C:2006:291), the referring court is of the opinion that the grant of an SPC is all the more unlikely since Protein D permits only the administration of an active ingredient.

18. In this case, it is important to note that it is common ground, as the file in this case shows, that the expression ‘active ingredient’ is generally accepted in pharmacology not to include substances forming part of a medicinal product which do not have an effect of their own on the human or animal body.

73 It should first be borne in mind that it is apparent from the Court's case-law that the Community institutions have been given a wide discretion in the application of Article 109 of the OCT Decision (see, to that effect, Case C-390/95 P Antillean Rice Mills and Others v Commission, cited above, paragraph 48).

51. In those circumstances, in order to ensure that Directive 2003/88 is fully effective, the Member States must prevent the maximum weekly working time laid down in Article 6(b) of Directive 2003/88 from being exceeded ( Pfeiffer and Others , paragraph 118).

118. In this instance, the principle of interpretation in conformity with Community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law, to ensure that Directive 93/104 is fully effective, in order to prevent the maximum weekly working time laid down in Article 6(2) of the directive from being exceeded (see, to that effect, Marleasing , paragraphs 7 and 13).

112. That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC, presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C‑334/92 Wagner Miret [1993] ECR I-6911, paragraph 20).

100 The purpose of Article 9(2) of Directive 64/221 is to provide minimum procedural guarantees for persons refused a first residence permit, or whose expulsion is ordered before the issue of the permit, in any of the three cases defined in Article 9(1). Where the right of appeal against administrative measures is restricted to the legality of the decision, the purpose of the intervention of the competent authority is to enable an examination of the facts and circumstances, including factors demonstrating the appropriateness of the proposed measure, to be carried out before the decision is finally taken (see, to that effect, Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraphs 34 and 37).

34 As the Court has already held, the provisions of Article 9 of the directive complement those of Article 8. Their purpose is to provide minimum procedural guarantees for persons affected by one of the measures referred to in the three cases defined in Article 9(1). Where the right of appeal is restricted to the legality of the decision, the purpose of the intervention of the competent authority referred to in Article 9(1) is to enable an exhaustive examination of all the facts and circumstances, including the expediency of the proposed measure, to be carried out before the decision is finally taken (Case 131/79 Regina v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585, paragraph 12; Adoui and Cornuaille, paragraph 15, and Case C-175/94 R v Secretary of State for the Home Department, ex parte Gallagher [1995] ECR I-4253, paragraph 17).

54. The Court of Justice has stipulated that account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others v Commission , paragraph 74, and Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 58).

35. Consequently, non‑material damage, compensation for which is provided for as part of the civil liability of the insured person under the national law applicable in the dispute, features among the types of damage in respect of which compensation must be provided in accordance with, inter alia, the First and Second Directives ( Haasová , paragraph 50, and Drozdovs , paragraph 41).

50. Consequently, non‑material damage, compensation for which is provided for as part of the civil liability of the insured person, under the national law applicable in the dispute, features among the types of damage in respect of which compensation must be provided in accordance with the First, Second and Third Directives.

33 As regards the judgments in Olivieri-Coenen and Grahame and Hollanders, cited above, although these were also concerned with the award of invalidity benefits under Netherlands legislation, the reference made to them has no relevance in the present case. Those judgments deal with the taking into account of periods of employment and periods treated as such completed in the Netherlands prior to 1 January 1967, the date on which the WAO entered into force, whereas the taking of such factors into account was expressly provided for in Point 4(a) of Section I of Annex V to Regulation No 1408/71, as it applied on 1 February 1982, in Olivieri-Coenen, and in Point 4(a), third indent, of Section J of Annex VI to Regulation No 1408/71 in Grahame and Hollanders. As the LISV and the Netherlands Government have pointed out, in the main proceedings the periods of employment completed by Mr Nijhuis in the Netherlands were between 15 October 1968 and 1 April 1974.

169 Furthermore, as is apparent from the case-law of the Court, a plea which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application must be considered admissible (Case 306/81 Verros v Parliament [1983] ECR 1755, paragraphs 9 and 10).

10 THE COURT NOTES THAT THE SECOND SUBMISSION IS CLOSELY CONNECTED WITH THE FIRST SUBMISSION ALLEGING AN INFRINGEMENT OF THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS , WHICH IS CITED IN THE APPLICATION . IN THOSE CIRCUMSTANCES , THAT SECOND SUBMISSION CONSTITUTES BY IMPLICATION A BRANCH OF THE FIRST SUBMISSION , AND MUST THEREFORE BE REGARDED AS ADMISSIBLE .

125. It is settled case-law that where Member States adopt, in that way, measures by which they implement EU law, they are required to respect the general principles of that law, which include the principle of legal certainty (see, to that effect, inter alia, Plantanol , C‑201/08, EU:C:2009:539, paragraph 43 and the case-law cited, and IBV & Cie , C‑195/12, EU:C:2013:598, paragraph 49).

30. Furthermore, Article 53(1) of Directive 2004/18 does not set out an exhaustive list of the criteria which may be used by the contracting authorities in determining the economically most advantageous tender, and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract. Their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous (see, to that effect, Lianakis and Others , C‑532/06, EU:C:2008:40, paragraphs 28 and 29 and the case-law cited). To that end, Article 53(1)(a) of Directive 2004/18 specifically requires that the award criteria be linked to the subject-matter of the contract (see judgment in Commission v Netherlands , C‑368/10, EU:C:2012:284, paragraph 86).

86. Second, Article 53(1)(a) of Directive 2004/18 requires that the award criteria be linked to the subject-matter of the contract. In that regard, recital 46 in the preamble lays down, in its third paragraph, that ‘the determination of these criteria depends on the object of the contract since they must allow the level of performance offered by each tender to be assessed in the light of the object of the contract, as defined in the technical specifications, and the value for money of each tender to be measured’, the ‘most economically advantageous tender’ being ‘[that] which … offers the best value for money’.

90. However, it follows from the case-law of the Court that the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy, but that, on the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (see Dansk Rørindustri and Others v Commission , paragraph 227).

7 It should also be noted that the appeal may only be founded on grounds relating to the infringement of rules of law to the exclusion of any appraisal of the facts, and, accordingly, the appeal is therefore admissible only in so far as it is claimed that the decision of the Court of First Instance is incompatible with the rules of law the application of which it had to ensure (Vidrányi v Commission [1991] ECR I-4339, paragraphs 12 and 13). The applicant' s appeal The first plea in law

12 It follows that the appeal may rely only on grounds relating to the infringement of rules of law by the Court of First Instance, to the exclusion of any appraisal of the facts (see Order in Case C-115/90 P Turner v Commission [1991] ECR I-1423).

30 However, the Court stated in its judgment in Case 220/81 (Robertson and Others [1982] ECR 2349, paragraph 12), that a Member State cannot require a fresh hallmark to be affixed to products imported from another Member State in which they have been lawfully marketed and hallmarked in accordance with the legislation of that State, where the information provided by that hallmark, in whatever form, is equivalent to that prescribed by the Member State of importation and intelligible to consumers of that State.

26 Copyright may be relied on not only by an author, but also by those claiming under him (see Phil Collins and Others, cited above, paragraph 35). It is not disputed that the copyright concerned in the main proceedings was still producing its effects as regards the persons claiming under Giacomo Puccini when the EEC Treaty entered into force (see Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraphs 49 and 50).

49 According to settled case-law, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of Community law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them (see, in particular, Case 21/81 Bout [1982] ECR 381, paragraph 13, and Case C-34/92 GruSa Fleisch [1993] ECR I-4147, paragraph 22).

30. As stated by the Advocate General in point 22 of his Opinion, Article 4 of the Framework Directive follows from the principle of effective judicial protection, which is a general principle of Community law stemming from the constitutional traditions common to the Member States and which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37 and the case‑law cited), pursuant to which it is for the courts of the Member States to ensure judicial protection of an individual’s rights under Community law ( Unibet , paragraph 38 and the case‑law cited).

65 As regards, in the second place, the justification based on the principle of territoriality and the alleged need to ensure a balanced allocation of the Member States’ powers to impose taxes, it should be recalled that that is a legitimate objective recognised by the Court (judgment of 7 November 2013 in K, C‑322/11, EU:C:2013:716, paragraph 50 and the case-law cited).

50. S’agissant, en premier lieu, de la répartition équilibrée du pouvoir d’imposition entre les États membres, invoquée par tous les gouvernements ayant présenté des observations ainsi que par la Commission, il y a lieu de rappeler qu’il s’agit d’un objectif légitime reconnu par la Cour (voir, notamment, arrêts du 29 novembre 2011, National Grid Indus, C‑371/10, Rec. p. I‑12273, point 45, et du 6 septembre 2012, Philips Electronics UK, C‑18/11, point 23) qui peut rendre nécessaire l’application, aux activités économiques des contribuables établis dans l’un desdits États membres, des seules règles fiscales de celui-ci, pour ce qui est tant des bénéfices que des pertes (voir, en ce sens, arrêts précités Marks & Spencer, point 45; Oy AA, point 54, ainsi que Lidl Belgium, point 31).

22. Regarding the Greek Government’s adoption of legislation removing the obligation on holders to submit the certificate from the competent authorities of his Member State of origin or of the State from which he comes, it is settled case-law that the question whether there has been a failure to fulfil obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account by the Court (see, inter alia, Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35).

54. The purpose of that progressive rather than immediate introduction of those payments in the new Member States was not to slow down the restructuring of the agricultural sector and not to create significant disparities in income or social imbalances by the granting of aid not proportionate to the income level of farmers and the general population (see, to that effect, judgments in Bábolna , C‑115/10, EU:C:2011:376, paragraph 34, and Poland v Council , C‑273/04, EU:C:2007:622, paragraph 69).

69. The concern not to slow down the necessary restructuring of the agricultural sector in those Member States and not to create significant disparities in income or social imbalances by the granting of aid not proportionate to the income level of farmers and the general population was applicable to for the whole of the agricultural sector, and therefore to all direct aid, existing or prospective. Further, if the system of phasing‑in of direct payments had been intended to apply only to certain crops, namely those for which direct payments had already been set up before adoption of the Act of Accession, there would have been a risk that the farmers of those Member States would have abandoned them in order to concentrate on the crops for which they could immediately obtain full direct payments.

29. Second, it should be recalled that the Court may reject a reference for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of European Union 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 and legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 61, and Case C‑450/09 Schröder [2011] ECR I‑2497, paragraph 17).

61. Nor is there any indication that the fact that the Commission did not inform Dalmine during the investigation stage that it was in possession of the minutes might have an impact on Dalmine’s subsequent possibilities of defending itself during the administrative procedure initiated by the notification of the statement of objections (see, by analogy, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , paragraphs 48 to 50 and 56).

49. The excessive duration of the first phase of the administrative procedure may have an effect on the future ability of the undertakings concerned to defend themselves, in particular by reducing the effectiveness of the rights of the defence in the second phase of the procedure. In effect, as the Advocate General observes at point 129 of her Opinion, the more time that elapses between a measure of investigation such as, in the present case, the sending of the warning letter and the notification of the statement of objections, the more unlikely it becomes that exculpatory evidence relating to the infringements set out in the statement of objections can be obtained, owing in particular to the changes that may have come about in the composition of the managing boards of the undertakings concerned and to the movements affecting their other staff. In its analysis of the reasonable time principle, the Court of First Instance did not have sufficient regard to that aspect of observance of the principle.

49. The legislation of a Member State which indiscriminately prevents taxpayers who have acquired holdings in non-resident investment funds from adducing evidence which satisfies criteria, in particular those of presentation, other than those laid down for national investments by the first Member State, goes beyond what is necessary to ensure effective fiscal supervision (see, to that effect, judgment in Meilicke and Others , EU:C:2011:438, paragraph 43).

43. Accordingly, the scope which the European Union legislature sought to give to the concept of ‘advertising spots’, within the meaning of Article 18(1) and (2) of Directive 89/552, must be examined in the light of the context of that provision and the objective pursued by the legislation in question (see, by analogy, Österreichischer Rundfunk , paragraph 25).

25. The purport which the Community legislature sought to give to the definitions of ‘television advertising’ and ‘teleshopping’ within the meaning of Article 1 of Directive 89/552 must thus be examined in the light of the context of that provision and the objective pursued by the legislation in question.

21 It is apparent from the foregoing that the requirement that "Only the description in the language or languages of the country in which the goods are marketed may be used" is necessary for the protection of consumers and the Council has, therefore, not exceeded the limits of its discretion in the framework of its powers of harmonization by adopting the explanatory notes in question (see in particular Case 37/83 REWE-Zentrale v Landwirtschaftskammer Rheinland [1984] ECR 1229, paragraph 20).

Il importe 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 éventuels intervenus par la suite ne sauraient être pris en compte par la Cour (arrêts du 31 mars 2011, Commission/Grèce, C‑407/09, EU:C:2011:196, points 16 et jurisprudence citée, ainsi que du 16 juillet 2015, Commission/Slovénie, C‑140/14, non publié, EU:C:2015:501, point 63).

16. According to the settled case-law of the Court, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes, even if they would constitute a correct transposition of the rule of European Union law that is the subject of the action for failure to fulfil obligations (see, inter alia, Case C-475/08 Commission v Belgium [2009] ECR I‑11503, paragraph 30, and judgment of 9 December 2010 in Case C-340/09 Commission v Spain , paragraph 39).

38. The Court notes, at the outset, that differences in treatment depending on whether a domestic or cross-border conversion is at issue cannot be justified by the absence of rules laid down in secondary European Union law. Even though such rules are indeed useful for facilitating cross-border conversions, their existence cannot be made a precondition for the implementation of the freedom of establishment laid down in Articles 49 TFEU and 54 TFEU (see, in relation to cross-border mergers, SEVIC Systems , paragraph 26).

77 Furthermore, Community law does not prevent the Member States from prescribing, for breaches of national provisions concerning the control of aliens, any appropriate sanctions necessary in order to ensure the efficacity of those provisions (Royer, cited above, paragraph 42), provided that those sanctions are proportionate (see, in particular, Case 157/79 Pieck [1980] ECR 2171, paragraph 19).

19 AS REGARDS OTHER PENALTIES SUCH AS FINES AND IMPRISONMENT , WHILST THE NATIONAL AUTHORITIES ARE ENTITLED TO IMPOSE PENALTIES IN RESPECT OF FAILURE TO COMPLY WITH THE TERMS OF PROVISIONS RELATING TO RESIDENCE PERMITS WHICH ARE COMPARABLE TO THOSE ATTACHING TO MINOR OFFENCES BY NATIONALS , THEY ARE NOT JUSTIFIED IN IMPOSING A PENALTY SO DISPROPORTIONATE TO THE GRAVITY OF THE INFRINGEMENT THAT IT BECOMES AN OBSTACLE TO THE FREE MOVEMENT OF PERSONS . THIS WOULD BE ESPECIALLY SO IF THAT PENALTY INCLUDED IMPRISONMENT .

22. Accordingly, the principle of the obligation of Member States to repay with interest amounts of tax levied in breach of European Union law follows from that law ( Littlewoods Retail and Others , paragraph 26, and Zuckerfabrik Jülich and Others , paragraph 66).

27. Moreover, the wording of Article 13B(a) of the Sixth Directive does not, in principle, preclude the activity of insurance broker and agent from being broken down into separate services which may then fall within the definition of ‘[insurance and reinsurance transactions, including] related services performed by insurance brokers and insurance agents’ (see, to that effect, with regard to Article 13B(d)(3) of the Sixth Directive, Case C‑2/95 SDC [1997] ECR I‑3017, paragraph 64; with regard to Article 13B(d)(6) of the directive, see Case C‑169/04 Abbey National [2006] ECR I‑4027, paragraph 67; and with regard to Article 13B(d)(1) of the directive, see Ludwig , paragraph 34).

67. Next, the wording of Article 13B(d)(6) of the Sixth Directive does not in principle preclude the management of special investment funds from being broken down into a number of separate services which may come within the meaning of ‘management of special investment funds’ in that provision, and which may benefit from the exemption under it, even where they are provided by a third-party manager (see, to that effect, as regards Article 13B(d)(3) of the Sixth Directive, SDC , paragraph 64, and, as regards Article 13B(d)(5) of that directive, Case C‑235/00 CSC Financial Services [2001] ECR I‑10237, paragraph 23).

60. It is common ground that the applicant in the main proceedings, as a holding companies incorporated under Luxembourg law, has purchased immovable property in France. There is no doubt that such a cross-border investment is a capital movement within the meaning of that nomenclature (see Case C‑376/03 D . [2005] ECR I‑5821, paragraph 24).

50. It must be observed that, since the 2003 Act constitutes the legislation by which Ireland discharged its obligations under Directive 1999/70, a claim based on an infringement of that legislation and a claim based directly on that directive must, as the referring court itself pointed out, be regarded as being covered by the same form of action (see, to that effect, Case C‑326/96 Levez [1998] ECR I‑7835, paragraphs 46 and 47, and Case C‑78/98 Preston and Others [2000] ECR I‑3201, paragraph 51). Notwithstanding formal distinctions as to their legal basis, both claims, as the Advocate General noted at point 58 of her Opinion, seek the protection of the same rights deriving from Community law, namely Directive 1999/70 and the framework agreement.

47 Accordingly, as the Advocate General rightly pointed out in paragraph 48 of his Opinion, the fact that the same procedural rules - namely, the limitation period laid down by section 2(5) of the Equal Pay Act - apply to two comparable claims, one relying on a right conferred by Community law, the other on a right acquired under domestic law, is not enough to ensure compliance with the principle of equivalence, as the United Kingdom Government maintains, since one and the same form of action is involved.

38 As far as design rights are concerned, certain restrictions on the free movement of goods have been allowed on the basis of Article 36 of the Treaty, where their purpose was to protect the specific subject-matter of the right of industrial and commercial property (see, to that effect, Case 53/87 CICRA and Others v Renault [1988] ECR 6039, paragraph 11).

24. It follows that, in order to interpret the term ‘carriage … by sea between ports’ which is part of the definitions of mainland and island cabotage in Article 2(1)(a) and (c) of Regulation No 3577/92, account must be taken of the objective of that provision, which is to implement freedom to provide services for maritime cabotage under the conditions and subject to the exceptions which it lays down (see Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 19).

19 On the basis of Article 84(2) of the Treaty, the Council adopted Regulation No 3577/92, the aim of which is to implement freedom to provide services for maritime cabotage under the conditions and subject to the exceptions which it lays down.

34 The purpose of a benefit such as the income guaranteed to elderly persons is to offset the inadequacy of the resources of the person concerned so as to enable him to attain the minimum level of resources guaranteed by the Law, at least where he resides in the territory of the State providing the benefit. Entitlement to the benefit is not conditional on the length of insurance cover or, in the case of certain beneficiaries, on the duration of residence. Its amount, which is independent of the length of insurance cover or the duration of residence, is equal to the difference between the minimum income fixed by the national rules, on the one hand, and part of the beneficiary' s resources, including the national and foreign pensions which he receives, on the other. In view of its differential nature, the amount of this benefit varies, by its nature, in accordance with the evolution of the amount of the guaranteed income, which is regularly re-assessed, and the resources of the person concerned.

Furthermore, the wording of point 3 of Article 13B(d) of the Sixth Directive does not in principle preclude a transfer from being broken down into separate services which then constitute ‘transactions concerning transfers’ within the meaning of that provision (judgment of 5 June 1997 in SDC, C‑2/95, EU:C:1997:278, paragraph 64). While it cannot be ruled out that the exemption at issue may include services which are not intrinsically transfers, it remains the case that that exemption can relate only to transactions which, viewed broadly, form a distinct whole and which fulfil in effect the specific, essential functions of such transfers (see, to that effect, judgment of 5 June 1997 in SDC, C‑2/95, EU:C:1997:278, paragraphs 66 to 68).

66 In order to be characterized as exempt transactions for the purposes of points 3 and 5 of Article 13B, the services provided by a data-handling centre must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in those two points. For `a transaction concerning transfers', the services provided must therefore have the effect of transferring funds and entail changes in the legal and financial situation. A service exempt under the Directive must be distinguished from a mere physical or technical supply, such as making a data-handling system available to a bank. In this regard, the national court must examine in particular the extent of the data-handling centre's responsibility vis-à-vis the banks, in particular the question whether its responsibility is restricted to technical aspects or whether it extends to the specific, essential aspects of the transactions.

24. As a preliminary point, it must be stated that, for the purposes of applying Directive 2000/76, where a co-generation plant comprises a number of boilers, each boiler and its associated equipment are to be regarded as constituting a separate plant (Case C-251/07 Gävle Kraftvärme [2008] ECR I-0000, paragraph 33).

47. That interpretation is, moreover, supported by the objective pursued by the Unfair Commercial Practices Directive of providing, as stated in recital 23 in the preamble to the directive, a high common level of consumer protection by carrying out a complete harmonisation of the rules relating to unfair business-to-consumer commercial practices, including unfair advertising (see, inter alia, Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 27), given that the interpretation upheld is such as to facilitate the effective application of Article 6(1) of that directive in a way favourable to the interests of consumers to whom false information has been given in advertising brochures distributed by a trader.

27. In that regard, it should be emphasised that the Directive carries out a complete harmonisation of the rules concerning unfair commercial practices of undertakings vis-à-vis consumers.

43. However, in this case, in the light of the factual background to the main proceedings, it is necessary to examine whether, instead of Article 19 of Regulation No 1408/71, Article 22 of the same regulation can be taken into consideration. Even if, formally, the national court has limited its question to the interpretation of Article 19, such a situation does not prevent the Court from providing the national court with all the elements of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see, to that effect, inter alia, Case C‑456/02 Trojani [2004] ECR I‑7573, paragraph 38; Case C‑258/04 Ioannidis [2005] ECR I‑8275, paragraph 20; and Case C‑392/05 Alevizos [2007] ECR I‑3505, paragraph 64).

111. It is apparent from the case‑file that that argument did not expand on an argument raised previously, whether directly or by implication, in the original application which is closely connected to the original complaint. However, Articles 48(2) of the Rules of Procedure of the General Court provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (see, to that effect, the judgment of 12 November 2009 in Case C‑564/08 P SGL Carbon v Commission , not published in the ECR, paragraphs 20 to 34).

29. Eu égard à l’ensemble de ces éléments, la Commission a explicité, aux points 291 à 295 de la décision litigieuse, l’incorporation de la consommation captive dans les calculs effectués. Ainsi, au point 292 de ladite décision, elle a exposé que la prise en compte de la valeur de la consommation captive dans le calcul des chiffres d’affaires et des parts de marché est essentielle, car ignorer cette valeur reviendrait nécessairement à conférer un avantage injustifié aux entreprises verticalement intégrées. En effet, en l’absence de prise en compte de ladite valeur, le profit réel tiré de l’entente par une telle entreprise ne serait pas pris en compte, de sorte que cette entreprise échapperait à une amende proportionnée à son importance sur le marché des produits concernés par l’infraction.

91. Further, the European Union is a union based on the rule of law in which the acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, the general principles of law and fundamental rights (see, to that effect, Case C‑550/09 E and F [2010] ECR I‑6213, paragraph 44).

67. As appears from paragraphs 41, 42 and 43 of Francovich and Others , cited above, subject to the right to reparation which flows directly from Community law where the conditions referred to in the preceding paragraph are satisfied, the State must make reparation for the consequences of the loss and damage caused in accordance with the domestic rules on liability, provided that the conditions for reparation of loss and damage laid down by national law must not be less favourable than those relating to similar domestic claims and must not be such as in practice to make it impossible or excessively difficult to obtain reparation (see also Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595).

33 The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.

66. According to the settled case-law of the Court, an aid measure which is put into effect in infringement of the obligations arising from Article 108(3) TFEU is unlawful (judgment in Distribution Casino France and Others , C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657, paragraph 30 and the case-law cited).

43 If that examination by the court making the reference raises doubt as to the compliance of the Italian legislation with Directive 93/22, it must be noted that it is settled case-law that, when applying national law, whether adopted before or after that directive, the national court called upon to interpret that law must do so, as far as possible, in the light of the wording and purpose of that directive so as to achieve the result pursued by the directive and thereby comply with the third paragraph of Article 249 EC (Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20, Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26, and Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 30).

8 In order to reply to that question, it should be observed that, as the Court pointed out in its judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts . It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty .

18. It should be noted as a preliminary observation that, according to consistent case-law, whilst direct taxation falls within the competence of Member States, the latter must nevertheless exercise that competence in a manner consistent with Community law (see, in particular, Case C-446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29; Case, C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-7995, paragraph 40; and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 36).

15 The Court of Justice has consistently held that pursuant to Article 168a of the EC Treaty and Article 51 of the Statute of the Court of Justice an appeal may be based only on pleas in law relating to an infringement of rules of law, to the exclusion of any issue challenging the facts as established by the Court of First Instance, and must, in accordance with Article 112(1)(c) of the Rules of Procedure of the Court of Justice, specify the pleas in law and the legal arguments relied upon in support of it. It follows from those provisions that an appeal must indicate precisely which elements of the contested judgment it challenges, and also the legal arguments which specifically support the appeal (see, inter alia, Case C-18/91 P V v Parliament [1992] ECR I-3997, paragraph 15, and the orders in Case C-338/93 P De Hoe v Commission [1994] ECR I-819, paragraphs 17 and 18, and Case C-26/94 P X v Commission [1994] ECR I-4379, paragraphs 11 and 12).

15 In this connection it should be noted that under Article 168a of the EEC Treaty and the corresponding provisions of the ECSC and EAEC Treaties, as well as the first paragraph of Article 51 of the Protocol on the Statute on the Court of Justice of the EEC and the corresponding provisions of the Statutes on the Court of Justice of the ECSC and the EAEC, an appeal is restricted to points of law. It follows that an appeal may be based only on pleas in law relating to an infringement of rules of law, to the exclusion of any issue challenging the facts as established by the Court of First Instance.

40. In order to reply to those questions, it is necessary to recall that the deduction system established by the directive is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. Thus, the common system of VAT seeks to ensure complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject, in principle, to VAT (see Case C‑408/98 Abbey National [2001] ECR I-1361, paragraph 24; Case C-435/05 Investrand [2007] ECR I‑1315, paragraph 22; and Case C-174/08 NCC Construction Danmark [2009] ECR I‑10567, paragraph 27).

154. In accordance with settled case-law, whilst the principle of freedom of expression is expressly recognised by Article 10 of the ECHR and constitutes one of the fundamental pillars of a democratic society, it nevertheless follows from Article 10(2) that freedom of expression may also be subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to this effect, Case C-368/95 Familiapress [1997] ECR I‑3689, paragraph 26; Case C-60/00 Carpenter [2002] ECR I‑6279, paragraph 42; Case C-112/00 Schmidberger [2003] ECR I‑5659, paragraph 79; and Karner , paragraph 50).

79. Second, whilst the fundamental rights at issue in the main proceedings are expressly recognised by the ECHR and constitute the fundamental pillars of a democratic society, it nevertheless follows from the express wording of paragraph 2 of Articles 10 and 11 of the Convention that freedom of expression and freedom of assembly are also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under those provisions and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 26, Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 42, and Eur. Court HR, Steel and Others v. The United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, § 101).

65 However, according to settled case-law of the Court, the wording used in one language version of a provision of EU 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. Such an approach would be incompatible with the requirement that EU law be applied uniformly. Where there is a divergence between the various language versions, the provision in question must thus be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgment of 15 November 2011, Kurcums Metal, C‑558/11, EU:C:2012:721, paragraph 48 and the case-law cited).

45. In order to establish whether a subsidiary determines its conduct on the market independently, the Commission is, as a general rule, bound to take into consideration the economic, organisational and legal links which tie that subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others v Commission , paragraphs 73 and 74, and Elf Aquitaine v Commission , paragraph 58).

73. It is clear, as the Advocate General pointed out in paragraphs 87 to 94 of her Opinion, that the conduct of the subsidiary on the market cannot be the only factor which enables the liability of the parent company to be established, but is only one of the signs of the existence of an economic unit.

213. In order to determine whether a breach of Community law is sufficiently serious, it is necessary to take account of all the factors which characterise the situation brought before the national court. Those factors include, in particular, the clarity and precision of the rule infringed, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law ( Brasserie du Pêcheur and Factortame , paragraph 56, and Haim , paragraphs 42 and 43).

29 It is true that, as the Court has consistently held (Case 196/85 Commission v France [1987] ECR 1597, paragraph 6), at its present stage of development Community law does not restrict the freedom of each Member State to lay down tax arrangements which differentiate between certain products, even products which are similar within the meaning of the first paragraph of Article 95 of the Treaty, on the basis of objective criteria, such as the nature of the raw materials used or the production processes employed. Such differentiation is compatible with Community law, however, only if it pursues objectives of economic policy which are themselves compatible with the requirements of the Treaty and its secondary legislation, and if the detailed rules are such as to avoid any form of discrimination, direct or indirect, in regard to imports from other Member States or any form of protection of competing domestic products.

6 IT SHOULD FIRST BE POINTED OUT THAT, AS THE COURT HAS CONSISTENTLY HELD ( SEE, MOST RECENTLY, THE JUDGMENT OF 4 MARCH 1986 IN CASE 106/84 COMMISSION V DENMARK (( 1986 )) ECR 833 ), AT ITS PRESENT STAGE OF DEVELOPMENT COMMUNITY LAW DOES NOT RESTRICT THE FREEDOM OF EACH MEMBER STATE TO LAY DOWN TAX ARRANGEMENTS WHICH DIFFERENTIATE BETWEEN CERTAIN PRODUCTS, EVEN PRODUCTS WHICH ARE SIMILAR WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 95, ON THE BASIS OF OBJECTIVE CRITERIA, SUCH AS THE NATURE OF THE RAW MATERIALS USED OR THE PRODUCTION PROCESSES EMPLOYED . SUCH DIFFERENTIATION IS COMPATIBLE WITH COMMUNITY LAW IF IT PURSUES OBJECTIVES OF ECONOMIC POLICY WHICH ARE THEMSELVES COMPATIBLE WITH THE REQUIREMENTS OF THE TREATY AND ITS SECONDARY LEGISLATION, AND IF THE DETAILED RULES ARE SUCH AS TO AVOID ANY FORM OF DISCRIMINATION, DIRECT OR INDIRECT, IN REGARD TO IMPORTS FROM OTHER MEMBER STATES OR ANY FORM OF PROTECTION OF COMPETING DOMESTIC PRODUCTS .

62. This finding is not invalidated by Article 220(2)(b) of the Customs Code. That provision is intended to safeguard debtors’ legitimate expectations as to the soundness of all of the particulars used in the decision to make or not to make a subsequent entry of customs duties in the accounts (see, with respect to Article 5(2) of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1), reproduced in Article 220(2)(b) of the Customs Code, Case C-348/89 Mecanarte [1991] ECR I-3277, paragraph 19, and Case C-251/00 Ilumitrónica [2002] ECR I-10433, paragraph 39). While it covers situations in which the Member States’ customs authorities cannot make a subsequent entry in the accounts of the duties in question and, therefore, cannot effect a post-clearance recovery, either, it does not release Member States from their obligation to establish the Communities’ entitlement to own resources.

51. Il ressort de la jurisprudence qu’une prestation peut être considérée comme accessoire à une prestation principale lorsqu’elle constitue non une fin en soi, mais le moyen de bénéficier dans les meilleures conditions du service principal (voir, en ce sens, arrêts Madgett et Baldwin, précité, point 24; du 25 février 1999, CPP, C‑349/96, Rec. p. I‑973, point 30; du 6 novembre 2003, Dornier, C‑45/01, Rec. p. I‑12911, point 34, ainsi que Horizon College, précité, point 29).

29. It follows from the case-law of the Court that a service may be regarded as ancillary to a principal service if it does not constitute an end in itself, but a means of better enjoying the principal service (see, to that effect, in particular, Joined Cases C‑308/96 and C‑94/97 Madgett and Baldwin [1998] ECR I‑6229, paragraph 24; CPP , paragraph 30; Dornier , paragraph 34; and Ygeia , paragraph 19).

39. It is also to be noted that, in the absence of Community rules governing the matter, it is for the domestic 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 Community law (see, inter alia, Rewe , paragraph 5; Comet , paragraph 13; Peterbroeck , paragraph 12; Case C‑453/99 Courage and Crehan [2001] ECR I-6297, paragraph 29; and Case C-13/01 Safalero [2003] ECR I-8679, paragraph 49).

19. It is not disputed, in the second place, that taking into account ‘negative income’ relating to immovable property located in the Member State of residence of the taxpayer concerned forms, as the Advocate General noted in paragraph 29 of her Opinion, a tax advantage connected with that taxpayer’s personal situation, which is relevant for the purposes of assessing his overall ability to pay tax (see, to that effect, judgments in Lakebrink and Peters-Lakebrink , C‑182/06, EU:C:2007:452, paragraph 34, and Renneberg , C‑527/06, EU:C:2008:566, paragraphs 65 to 67).

66. To the extent that, although residing in one Member State, a person such as Mr Renneberg derives most of his taxable income from salaried employment in another Member State and has no significant income in his Member State of residence, he is, for the purposes of taking into account his ability to pay tax, in a situation objectively comparable, with regard to his Member State of employment, to that of a resident of that Member State who is also in salaried employment there.

65 The Court has consistently held that the requirements flowing from the protection of general principles recognised in the Community legal order, including the principle of the protection of legitimate expectations, are also binding on Member States when they implement Community rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements. Where national rules fall within the scope of Community law and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the general principles the observance of which is ensured by the Court (see, on fundamental rights falling within those general principles, Case C-2/92 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Bostock [1994] ECR I-955, paragraph 16).

52. In that regard, it must be noted that such requirements relating to social housing policy in a Member State can constitute overriding reasons in the public interest and therefore justify restrictions such as those established by the Flemish Decree (see Woningstichting Sint Servatius , paragraphs 29 and 30, and Case C‑400/08 Commission v Spain [2011] ECR I‑1915, paragraph 74).

74. Such overriding reasons recognised by the Court include: environmental protection (see, inter alia, Case C‑384/08 Attanasio Group [2010] ECR I‑0000, paragraph 50 and the case-law cited); town and country planning (see, by analogy, Case C‑567/07 Woningstichting Sint Servatius [2009] ECR I‑9021, paragraph 29 and the case-law cited); and consumer protection (see, inter alia, Case C‑260/04 Commission v Italy [2007] ECR I‑7083, paragraph 27 and the case-law cited). On the other hand, purely economic objectives cannot constitute an overriding reason in the public interest (see, to that effect, inter alia, Case C‑96/08 CIBA [2010] ECR I‑0000, paragraph 48 and the case-law cited).

10. First, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-23/05 Commission v Luxembourg [2005] ECR I-9535, paragraph 9, and judgment of 17 December 2009 in Case C-120/09 Commission v Belgium , paragraph 19).

36. The Court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one State to another ( Lebon , paragraph 21). According to the Court, there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly ( Lebon , paragraphs 22 and 23).

21 IT MUST BE POINTED OUT, SECONDLY, THAT THE STATUS OF DEPENDENT MEMBER OF A WORKER' S FAMILY DOES NOT PRESUPPOSE THE EXISTENCE OF A RIGHT TO MAINTENANCE EITHER . IF THAT WERE THE CASE, THE COMPOSITION OF THE FAMILY WOULD DEPEND ON NATIONAL LEGISLATION, WHICH VARIES FROM ONE STATE TO ANOTHER, AND THAT WOULD LEAD TO THE APPLICATION OF COMMUNITY LAW IN A MANNER THAT IS NOT UNIFORM .

37 Furthermore, the assessments leading to setting maximum amounts of nutrients which may be used in the manufacture of food supplements must be carried out on a case-by-case basis (see, to that effect, judgments of 23 September 2003, Commission v Denmark, C‑192/01, EU:C:2003:492, paragraph 46; of 5 February 2004, Greenham and Abel, C‑95/01, EU:C:2004:71, paragraph 40; of 5 February 2004, Commission v France, C‑24/00, EU:C:2004:70, paragraph 53; of 2 December 2004, Commission v Netherlands, C‑41/02, EU:C:2004:762, paragraph 47, and of 29 April 2010, Solgar Vitamin’s France and Others, C‑446/08, EU:C:2010:233, paragraphs 55 and 72).

29. La Cour a ainsi déjà jugé que, en matière de taxation des véhicules automobiles, cette disposition du traité vise à garantir la parfaite neutralité des impositions intérieures au regard de la concurrence entre produits se trouvant déjà sur le marché national et produits importés (arrêts du 11 décembre 1990, Commission/Danemark, C‑47/88, Rec. p. I‑4509, point 9, et du 29 avril 2004, Weigel, C‑387/01, Rec. p. I‑4981, point 66).

9 It should also be noted that, as the Court has consistently held ( see most recently the judgment in Case 252/86 Bergandi v Directeur général des impôts [1988] ECR 1343 ) that the aim of Article 95 as a whole is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States . Thus Article 95 must guarantee the complete neutrality of internal taxation as regards competition between domestic products and imported products .

25. The Court did not give a ruling on whether the Member States are competent to enact legislation imposing reporting obligations on milk producers established within their territory that go beyond those in the provision to be interpreted since that issue was not the subject-matter of the question referred ( Slob, paragraph 30).

23. As the obligation to notify referred to, inter alia, in the first subparagraph of Article 8(1) of Directive 98/34 is essential for achieving that Community control, the effectiveness of such control will be that much greater if that directive is interpreted as meaning that failure to observe the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable and therefore unenforceable against individuals ( CIA Security International , paragraphs 44, 48 and 54, and Lemmens , paragraph 33).

33 In paragraphs 48 and 54 of that judgment, the Court pointed out that the obligation to notify is essential for achieving such Community control and went on to state that the effectiveness of such control will be that much greater if the Directive is interpreted as meaning that breach of the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable, and thus unenforceable against individuals.

24 As the Court has pointed out on a number of occasions, the Member States retain sole competence to determine the level and the duration of the benefits granted by them (judgment in Gómez Rodríguez, cited above, paragraph 28).

90. Regarding the last mentioned principle, it must nevertheless be noted that, due to the fact that the agricultural situation in the new Member States was radically different from that in the Member States other than the new Member States, which prevents any valid comparison being made (judgment in Poland v Council , C‑273/04, EU:C:2007:622, paragraphs 87 and 88), the specific provisions of Articles 10 and 132 of Regulation No 73/2009, which meet the legitimate ground of applying, as from 2012, the rules for modulation in the new Member States, do not infringe the principle of non-discrimination.

87. There is no need to consider the argument of the Council that the contested decision cannot be discriminatory since it stems directly from the Act of Accession, since it is undisputed in the present case that the agricultural situation in the new Member States was radically different from that in the old Member States, which justified a gradual application of Community rules, in particular those rules relating to direct support schemes, in order not to disrupt the necessary on‑going restructuring in the agricultural sector of the new Member States.

53. It follows from this that, inasmuch as the national court or tribunal seised of an action for enforcement of a final arbitration award is required, in accordance with domestic rules of procedure, to assess of its own motion whether an arbitration clause is in conflict with domestic rules of public policy, it is also obliged to assess of its own motion whether that clause is unfair in the light of Article 6 of that directive, where it has available to it the legal and factual elements necessary for that task (see, to that effect, Pannon GSM , paragraph 32).

66. Various factors, set out in paragraphs 291 to 327 of the Kadi judgment, were advanced in support of the position stated by the Court in that judgment, and there has been no change in those factors which could justify reconsideration of that position, those factors being, essentially, bound up with the constitutional guarantee which is exercised, in a Union based on the rule of law (see Case C‑550/09 E and F [2010] ECR I‑6213, paragraph 44, and the judgment of 26 June 2012 in Case C‑335/09 P Poland v Commission [2012] ECR I‑0000, paragraph 48), by judicial review of the lawfulness of all European Union measures, including those which, as in the present case, implement an international law measure, in the light of the fundamental rights guaranteed by the European Union.

317. The question of the Court’s jurisdiction arises in the context of the internal and autonomous legal order of the Community, within whose ambit the contested regulation falls and in which the Court has jurisdiction to review the validity of Community measures in the light of fundamental rights.

29. According to the Court’s case-law, the exemptions envisaged in Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all supplies of services for consideration by a taxable person (see, in particular, Commission v Germany , cited above, paragraph 43; Case C-8/01 Taksatorringen [2003] ECR I-13711, paragraph 36; and Temco Europe , cited above, paragraph 17). However, the interpretation of the terms used in that provision must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT (Case C‑45/01 Dornier [2003] ECR I-12911, paragraph 42).

51. In that regard, it must be recalled that although the desire to avoid disturbances on the labour market is undoubtedly an overriding reason in the public interest, workers who are employed by an undertaking established in a Member State and posted to another Member State for the purposes of providing services there do not purport to gain access to the labour market of that second State, as they return to their country of origin or residence after the completion of their work (see judgments in Rush Portuguesa , C‑113/89, EU:C:1990:142, paragraph 15; Commission v Luxembourg , EU:C:2004:655, paragraph 38; and Commission v Austria , EU:C:2006:595, paragraph 55).

15 The situation is different, however, in a case such as that in the main proceedings where there is a temporary movement of workers who are sent to another Member State to carry out construction work or public works as part of a provision of services by their employer . In fact, such workers return to their country of origin after the completion of their work without at any time gaining access to the labour market of the host Member State .

39. The Court has consistently held that such a restriction on a fundamental freedom guaranteed by the Treaty may be justified only where it serves overriding reasons relating to the general interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see, inter alia, Case C-398/95 SETTG [1997] ECR I‑3091, paragraph 21; Case C-6/98 ARD [1999] ECR I-7599, paragraphs 50 and 51; and Cipolla and Others , paragraph 61).

72 Admittedly, the legislative measures that are referred to in Article 15(1) of Directive 2002/58 concern activities characteristic of States or State authorities, and are unrelated to fields in which individuals are active (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 51). Moreover, the objectives which, under that provision, such measures must pursue, such as safeguarding national security, defence and public security and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications system, overlap substantially with the objectives pursued by the activities referred to in Article 1(3) of that directive.

51. However, none of these exceptions appears to relate to situations that call for the bringing of civil proceedings. They concern, first, national security, defence and public security, which constitute activities of the State or of State authorities unrelated to the fields of activity of individuals (see, to that effect, Lindqvist , paragraph 43), and, second, the prosecution of criminal offences.

30. Therefore, with the aim of improving the efficiency and speed of judicial procedures and ensuring proper administration of justice, that regulation establishes the principle of direct transmission of judicial and extrajudicial documents between the Member States (see judgment in Leffler , C‑443/03, EU:C:2005:665, paragraph 3), which has the effect of simplifying and accelerating the procedures. Those objectives are noted in recitals 6 to 8 in the preamble to that regulation.

35. Similarly, according to settled case-law, the prohibition on discrimination is not concerned with any disparities in treatment which may result, between the Member States, from divergences existing between the legislation of the various Member States, so long as that legislation affects equally all persons subject to it (Case C‑428/07 Horvath [2009] ECR I‑6355, paragraph 55 and the case-law cited).

55. In that regard, according to settled case-law, the prohibition on discrimination is not concerned with any disparities in treatment which may result, between the Member States, from divergences existing between the legislation of the various Member States so long as that legislation affects equally all persons subject to it (see, to that effect, Joined Cases 185/78 to 204/78 Van Dam and Others [1979] ECR 2345, paragraph 10; Case C-177/94 Perfilli [1996] ECR I‑161, paragraph 17; and Case C-403/03 Schempp [2005] ECR I-6421, paragraph 34).

62 As regards the complaint that the Court of First Instance failed to check whether the Commission had followed its usual administrative practice and had had regard for the rights of the defence, suffice it to observe that that complaint was not raised at first instance. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a dispute of wider ambit than that which came before the Court of First Instance. In an appeal the Court's jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance (see, inter alia, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 62).

63. In paragraph 34 of Lakebrink and Peters-Lakebrink , the Court stated that the scope of the case-law arising from Schumacker extends to all the tax advantages connected with the non-resident’s ability to pay tax which are granted neither in the State of residence nor in the State of employment.

34. Secondly, the ground, recalled at paragraph 31 of the present judgment, on the basis of which the Court made its finding of discrimination in Schumacker concerns, as the Advocate General has pointed out at point 36 of his Opinion, all the tax advantages connected with the non‑resident’s ability to pay tax which are not taken into account either in the State of residence or in the State of employment (see also the Opinion of Advocate General Léger in Ritter-Coulais , points 97 to 99), since the ability to pay tax may indeed be regarded as forming part of the personal situation of the non‑resident within the meaning of the judgment in Schumacker .

14 On the basis of those criteria, the action must be declared admissible. The Parliament alleges infringement of its prerogatives, inasmuch as the failure to consult it a second time during the procedure leading to the adoption of the contested regulation meant that it was not duly associated with the drafting of a legislative measure whose adoption, pursuant to Article 75 of the Treaty, is subject to the requirement that there should be prior consultation of the Parliament. Due consultation of the Parliament in the cases provided for by the Treaty is one of the means enabling the Parliament to participate effectively in the Community' s legislative procedure (see the so-called "Isoglucose" judgments in Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 33, and Case 139/79 Maizena v Council [1980] ECR 3393, paragraph 34).

20 As regards the objective criteria which may indicate certain cross-border interest, the Court has previously held that such criteria may be, in particular, the fact that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the contract and the specific characteristics of the products concerned. In that context, it is also possible to take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious (see, to that effect, judgments of 15 May 2008, SECAP and Santorso, C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 31, and of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 20 and the case-law cited).

31. It is permissible, however, for legislation to lay down objective criteria, at national or local level, indicating that there is certain cross-border interest. Such criteria could be, inter alia, the fact that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out. The possibility of such an interest may also be excluded in a case, for example, where the economic interest at stake in the contract in question is very modest (see, to that effect, Case C‑231/03 Coname [2005] ECR I‑7287, paragraph 20). However, in certain cases, account must be taken of the fact that the borders straddle conurbations which are situated in the territory of different Member States and that, in those circumstances, even low-value contracts may be of certain cross-border interest.

54. It is important that, where there is uncertainty as to the existence or extent of risks to human health, a Member State should be able to take protective measures without having to wait until the reality of those risks becomes fully apparent. Furthermore, a Member State may take the measures that reduce, as far as possible, a public-health risk (see, to this effect, Case C-170/04 Rosengren and Others [2007] ECR I-4071, paragraph 49), including, more specifically, a risk to the reliability and quality of the provision of medicinal products to the public.

47. The Court has already held that any tax on income received in the State in which dividends are distributed is a withholding tax on distributed profits for the purposes of Article 5(1) of the Directive where the chargeable event for the tax is the payment of dividends or of any other income from shares, the taxable amount is the income from those shares and the taxable person is the holder of the shares (to this effect, see Epson Europe , paragraph 23, and Athinaiki Zithopiia , paragraphs 28 and 29).

23 It is clear from the order for reference and from the observations submitted under Article 20 of the EC Statute of the Court of Justice that ISD is a withholding tax for which the chargeable event is the payment of dividends or of any other income from shares, that the taxable amount is the income from the shares and that the taxable person is the holder of the shares. ISD thus has the same effect as a tax on income. It is immaterial in that respect that it is called succession and donation tax and that it is levied in parallel with IRC.

54 The request for an institution to act must be sufficiently clear and precise to enable that institution to ascertain in specific terms the content of the decision that it is being asked to adopt and must also show what matters are understood to require the institution to define its position (see, by analogy, judgment of 10 June 1986, Usinor v Commission, 81/85 and 119/85, EU:C:1986:234, paragraph 15, and order of 18 November 1999, Pescados Congelados Jogamar v Commission, C‑249/99 P, EU:C:1999:571, paragraph 18).

22. As regards the scope of those exceptions and limitations, it must be pointed out that, according to the settled case-law of the Court, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly (Case C‑5/08 Infopaq International EU:C:2009:465, paragraph 56 and the case-law cited).

56. For the interpretation of each of those conditions in turn, it should be borne in mind that, according to settled case-law, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly (Case C-476/01 Kapper [2004] ECR I-5205, paragraph 72, and Case C‑36/05 Commission v Spain [2006] ECR I‑10313, paragraph 31).

88. Fourth and finally, as noted in the second paragraph of that recital, the same principles require the contracting authority to ensure the procedure for awarding a public contract complies at every stage with both the principle of the equal treatment of potential tenderers and the principle of transparency of the award criteria, the formulation of the award criteria being such as to allow all reasonably well‑informed tenderers exercising ordinary care to know the exact scope thereof and thus to interpret them in the same way (see, inter alia, with regard to the provisions of the predecessor directives to Directive 2004/18, Case C‑448/01 EVN and Wienstrom [2003] ECR I‑14527, paragraphs 56 to 58).

25. Moreover, it follows from that case-law that the Court may decline to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see PreussenElektra , paragraph 39; Canal Satélite Digital , paragraph 19; Adolf Truley , paragraph 22; and Korhonen and Others , paragraph 20).

22. Moreover, the Court has also consistently held that it may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia , Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39, and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 19).

48. As a national of at least one Member State, a person such as Mrs McCarthy enjoys the status of a Union citizen under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against his Member State of origin, in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States (see Case C‑33/07 Jipa [2008] ECR I‑5157, paragraph 17 and case-law cited).

48 It must, however, also be borne in mind that, according to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties (see Case 270/80 Polydor and RSO Records [1982] ECR 329, paragraphs 14 to 21; Case 104/81 Kupferberg [1982] ECR 3641, paragraphs 29 to 31; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 to 20).

11 It is clear from that case-law that the extension of the interpretation of a provision in the Treaty to a comparably, similarly or even identically worded provision of an agreement concluded by the Community with a non-member country depends, inter alia, on the aim pursued by each provision in its particular context and that a comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance in that regard.

53. Article 1(a) of the Directive not only sets out the definition of the concept of ‘waste’ for the purposes of the Directive, but also – in conjunction with Article 2(1) – defines the scope of the Directive. Article 2(1) lists the forms of waste that are excluded from the scope of the Directive, as well as those that may be excluded, and the circumstances in which that is possible, whereas in principle the Directive covers all waste which corresponds to the definition set out in Article 1(a) thereof. Any provision of national law which limits in general terms the scope of the obligations arising under the Directive, to a greater degree than is permitted under Article 2(1), is necessarily disregarding the scope of the Directive (see, to that effect, Commission v United Kingdom , paragraph 11), thus undermining the effectiveness of Article 174 EC (see, to that effect, ARCO Chemie Nederland and Others , paragraph 42).

53 That definition of the term `onset of the employer's insolvency' cannot, however, preclude the option available to the Member States, acknowledged in Article 9 of the Directive, of applying or introducing provisions that are more favourable to employees, in particular for the purpose of including unpaid remuneration during a period subsequent to the lodging of a request that proceedings to satisfy collectively the claims of creditors be opened (see also the judgment of today's date in Joined Cases C-94/95 and C-95/95 Bonifaci and Others and Berto and Others, cited above, at paragraphs 36 to 43).

43 That definition of the term `onset of the employer's insolvency' cannot, however, preclude the option available to the Member States, acknowledged in Article 9 of the Directive, of applying or introducing provisions that are more favourable to employees, in particular for the purpose of including unpaid remuneration during a period subsequent to the lodging of a request that proceedings to satisfy collectively the claims of creditors be opened (see also the judgment of today's date in Case C-373/95 Maso and Others [1997] ECR I-0000, paragraphs 46 to 52).

In the second place, the Court of Justice has already held on a number of occasions that, although the distinctive character of an earlier mark must be taken into account when assessing the likelihood of confusion globally, it is, however, only one factor among others involved in that assessment (judgment of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 61 and case-law cited).

30. However, provisions of national legislation which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute obstacles to that freedom even if they apply without regard to the nationality of the workers concerned (see, inter alia, Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 26, and Case C‑325/08 Olympique Lyonnais [2010] ECR I‑2177, paragraph 34).

34. National provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute restrictions on that freedom even if they apply without regard to the nationality of the workers concerned (see, in particular, Bosman , paragraph 96; Kranemann , paragraph 26; and ITC , paragraph 33).

81. According to settled case-law, only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 (judgments in Mag Instrument v OHIM , C‑136/02 P, EU:C:2004:592, paragraph 31, and Chocoladefabriken Lindt & Sprüngli v OHIM , C‑98/11 P, EU:C:2012:307, paragraph 42).

27. According to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments in van der Weerd and Others , C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 22, and Melki and Abdeli , C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27).

27. In that regard, suffice it to point out that, according to settled case‑law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑333/07 Regie Networks [2008] ECR I‑10807, paragraph 46; Case C‑478/07 Budejovicky Budvar [2009] ECR I‑0000, paragraph 63; and Case C‑56/09 Zanotti [2010] ECR I‑0000, paragraph 15).

52 Freedom of establishment, which Article 49 TFEU grants to European Union nationals, includes the right for them to take up and pursue activities as self‑employed persons and to set up and manage undertakings under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected. It entails, in accordance with Article 54 TFEU, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (judgment of 17 July 2014, Nordea Bank Danmark, C‑48/13, EU:C:2014:2087, paragraph 17 and the case-law cited).

46. Furthermore, in relation to the latter point, the Court has held that the existence of a real link with the labour market of a Member State can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question (see Collins , paragraph 70, and Vatsouras and Koupatantze , paragraph 39).

39. The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question ( Collins , paragraph 70).

36. Under that system of supervision, the Commission and the national courts have different powers and responsibilities (judgment in Namur-Les assurances du crédit , C‑44/93, EU:C:1994:311, paragraph 14).

22. As regards the question whether national legislation falls within the scope of one or other of the freedoms of movement, it is clear from what is now well established case-law that the purpose of the legislation concerned must be taken into consideration (see, to that effect, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraphs 31 to 33; Case C‑452/04 Fidium Finanz [2006] ECR I‑9521, paragraphs 34 and 44 to 49; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑0000, paragraphs 37 and 38; Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑0000, paragraph 36; and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007 ] ECR I‑0000, paragraphs 26 to 34).

33. Legislation such as the legislation at issue in the main proceedings, which is targeted only at relations within a group of companies, primarily affects freedom of establishment and should, accordingly, be considered in the light of Article 43 EC (see, to that effect, Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 32, and Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑0000, paragraph 118).

58 It should be borne in mind that, as the Court held in its judgment in C-156/87 Gestetner, at paragraph 63, the question whether the interests of the Community call for Community intervention involves appraisal of complex economic situations and judicial review of such an appraisal must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.

53. It is not disputed that such a requirement is a restriction on the freedom to provide services. That requirement is particularly damaging to undertakings operating in sectors in which frequent use is made of short‑term and service‑specific contracts, or of newly‑created undertakings (see Commission v Luxembourg , paragraph 44).

44. With regard to the requirement, in the case of an application for a collective work permit, that an employment contract of indefinite duration must have been in force between the relevant workers and their undertaking of origin for at least six months, it has already been stated in paragraphs 33 and 34 of the present judgment that this is likely to make considerably more complicated the provision of services in Luxembourg by undertakings in a sector in which frequent use is made of short‑term and service-specific contracts, or by newly-created undertakings using workers who are nationals of non-member countries.

46. As the Court has already held, in relation to direct taxes, the situations of residents and of non-residents within a 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 is habitually resident (Case C‑279/93 Schumacker [1995] ECR I‑225, paragraphs 31 and 32, and Gerritse , paragraph 43).

28. The Court has also made clear that an order imposing a periodic penalty payment and/or a lump sum is intended to place a defaulting Member State under economic pressure which induces it to put an end to the infringement established. The financial penalties imposed must therefore be decided on according to the degree of persuasion needed for the Member State in question to alter its conduct (see, to that effect, Case C‑304/02 Commission v France , paragraph 91, and Case C‑177/04 Commission v France , paragraphs 59 and 60).

91. The argument that, in departing from or going beyond the Commission’s suggestions, the Court infringes a general principle of procedural law which prohibits courts from going beyond the parties’ claims is not well founded either. The procedure provided for in Article 228(2) EC is a special judicial procedure, peculiar to Community law, which cannot be equated with a civil procedure. The order imposing a penalty payment and/or a lump sum is not intended to compensate for damage caused by the Member State concerned, but to place it under economic pressure which induces it to put an end to the breach established. The financial penalties imposed must therefore be decided upon according to the degree of persuasion needed in order for the Member State in question to alter its conduct.

44 Finally, the VAT exemptions are intended to enable a comparable collection of the European Union’s own resources in all the Member States. It follows that, even if Article 135(1)(j) of the VAT Directive, read in conjunction with Article 12 thereof (to which it refers), refers to the conditions for exemption fixed by the Member States, the exemptions laid down by that provision correspond to autonomous concepts of EU law so that the basis for assessing VAT may be determined in a uniform manner and according to common rules (see, to that effect, judgment of 4 October 2001, Goed Wonen, C‑326/99, EU:C:2001:506, paragraph 47, and the case-law cited).

19 THAT QUESTION , WHICH WAS CONSIDERED IN THE JUDGMENT OF 27 FEBRUARY 1985 AND WHICH CONCERNS THE DETERMINATION OF THE SCOPE OF THE JUDGMENT OF 15 OCTOBER 1980 , IS HOWEVER IRRELEVANT FOR THE PURPOSES OF THIS CASE WHICH WAS BROUGHT BEFORE THE NATIONAL COURT ON 13 MAY 1982 , THAT IS TO SAY AFTER THE IMPLIED DECLARATION TO THE EFFECT THAT THE PROVISIONS REFERRED TO IN THE QUESTION SUBMITTED FOR A PRELIMINARY RULING WERE INVALID .

52 IN THIS CASE IT IS NECESSARY TO APPLY BY ANALOGY THE SECOND PARAGRAPH OF ARTICLE 174 OF THE TREATY , WHEREBY THE COURT OF JUSTICE MAY STATE WHICH OF THE EFFECTS OF THE REGULATION WHICH IT HAS DECLARED VOID SHALL BE CONSIDERED AS DEFINITIVE , FOR THE SAME REASONS OF LEGAL CERTAINTY AS THOSE WHICH FORM THE BASIS OF THAT PROVISION . ON THE ONE HAND THE INVALIDITY OF THE REGULATION IN THIS CASE MIGHT GIVE RISE TO THE RECOVERY OF SUMS PAID BUT NOT OWED BY THE UNDERTAKINGS CONCERNED IN COUNTRIES WITH DEPRECIATED CURRENCIES AND BY THE NATIONAL AUTHORITIES IN QUESTION IN COUNTRIES WITH HARD CURRENCIES WHICH , IN VIEW OF THE LACK OF UNIFORMITY OF THE RELEVANT NATIONAL LEGISLATION , WOULD BE CAPABLE OF CAUSING CONSIDERABLE DIFFERENCES IN TREATMENT , THEREBY CAUSING FURTHER DISTORTION IN COMPETITION . ON THE OTHER HAND , IT IS IMPOSSIBLE TO APPRAISE THE ECONOMIC DISADVANTAGES RESULTING FROM THE INVALIDITY OF THE PROVISIONS OF THE REGULATIONS IN QUESTION WITHOUT MAKING ASSESSMENTS WHICH THE COMMISSION ALONE IS REQUIRED TO MAKE UNDER REGULATION NO 974/71 , HAVING REGARD TO OTHER RELEVANT FACTORS , FOR EXAMPLE THE APPLICATION OF THE ' ' GREEN RATE ' ' TO THE PRODUCTION REFUND .

67 As the General Court noted in paragraph 56 of the judgment under appeal, its power to alter decisions does not have the effect of conferring on it the power to substitute its own assessment for that of a Board of Appeal of EUIPO, or of carrying out an assessment on which that Board of Appeal has not yet adopted a position (judgment of 5 July 2011 in Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72).

44. It is thus clear from the case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the public interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49; Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55; and Test Claimants in the FII Group Litigation , paragraph 46).

47. It should be noted furthermore that, in Bachmann and Commission v Belgium , the purpose of the tax provisions in question was also to avoid double taxation. The possibility which Belgian legislation gave to physical persons to deduct payments made under life assurance contracts from their taxable income – with the end result of not taxing the income used to pay those contributions – was based on the justification that the capital constituted by means of those contributions would subsequently be taxed in the hands of its holders. In such a system, double taxation was avoided by postponing the sole taxation due until the time when the capital constituted by means of the exonerated contributions was paid. Coherence of the tax system necessarily required that, if the Belgian tax authorities were to allow the deductibility of life assurance contributions from taxable income, they had to be certain that the capital paid by the assurance company at the expiry of the contract would in fact subsequently be taxed. It is in that precise context that the Court of Justice then took the view that there were no less restrictive measures than those forming the subject-matter of Bachmann and Commission v Belgium , which were capable of safeguarding the coherence of the tax system in question.

45. It is settled case-law that Article 39 EC prohibits not only all discrimination, direct or indirect, based on nationality, but also national rules which are applicable irrespective of the nationality of the workers concerned but impede their freedom of movement ( Graf , paragraph 18, and Weigel , paragraphs 50 and 51).

37. In order to enable the Court to provide a useful interpretation of Community law, it is appropriate that, before making the reference to the Court, the national court should establish the facts of the case and settle the questions of purely national law (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association [1981] ECR 735, paragraph 6). By the same token, it is essential for the national court to explain why it considers that a reply to its questions is necessary to enable it to give judgment (see Joined Cases 98/85, 162/85 and 258/85 Bertini and Others [1986] ECR 1885, paragraph 6, and Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 19).

6 THE NEED TO PROVIDE AN INTERPRETATION OF COMMUNITY LAW WHICH WILL BE OF USE TO THE NATIONAL COURT MAKES IT ESSENTIAL , AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 12 JULY 1979 ( CASE 244/78 UNION LAITIERE NORMANDE ( 1979 ) ECR 2663 ) TO DEFINE THE LEGAL CONTEXT IN WHICH THE INTERPRETATION REQUESTED SHOULD BE PLACED . FROM THAT ASPECT IT MIGHT BE CONVENIENT , IN CERTAIN CIRCUMSTANCES , FOR THE FACTS IN THE CASE TO BE ESTABLISHED AND FOR QUESTIONS OF PURELY NATIONAL LAW TO BE SETTLED AT THE TIME THE REFERENCE IS MADE TO THE COURT OF JUSTICE SO AS TO ENABLE THE LATTER TO TAKE COGNIZANCE OF ALL THE FEATURES OF FACT AND OF LAW WHICH MAY BE RELEVANT TO THE INTERPRETATION OF COMMUNITY LAW WHICH IT IS CALLED UPON TO GIVE .

84. Thus, as Mr Fuß and the Commission have correctly pointed out, Article 6(b) of Directive 2003/88, far from requiring the workers concerned to request their employers to comply with the minimum requirements provided for by that provision, in fact imposes on employers, where internal law applies the derogation provided for in Article 22 of that directive, the obligation to obtain the individual, explicit and free consent of that worker to the relinquishing of the rights conferred by Article 6(b) (see Pfeiffer and Others , paragraphs 82 and 84).

46 As regards the intention of the parents to settle permanently with the child in a Member State, the Court has recognised that that can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State (see, to that effect, judgment of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 40).

40. As the Advocate General pointed out in point 44 of her Opinion, the parents’ intention to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that State.

53. Neither Article 45 TFEU nor Regulation No 1612/68 prescribes a specific measure to be taken by the Member States or by a private employer such as Daimler in the event of a breach of the prohibition of discrimination. Those provisions leave them free to choose between the different solutions suitable for achieving the objective of those respective provisions, depending on the different situations which may arise ( Raccanelli , paragraph 50).

33 However, as the Commission rightly points out, application of the Court's traditional case-law, according to which the place of the performance of the obligation in question, within the meaning of Article 5(1) of the Brussels Convention, is to be determined in accordance with the law governing the obligation in question, according to the conflict rules of the court seised (Tessili, paragraphs 13 and 15; Custom Made Commercial, paragraph 26; GIE Groupe Concorde and Others, paragraph 32; and Leathertex, paragraph 33), does not enable that result to be achieved.

26 With regard to the "place of performance", the Court has ruled that it is for the court before which the matter is brought to establish under the Convention whether the place of performance is situate within its territorial jurisdiction and that it must for that purpose determine in accordance with its own rules of conflict of laws what is the law applicable to the legal relationship in question and define, in accordance with that law, the place of performance of the contractual obligation in question (see Tessili, cited above, paragraph 13, as referred to in paragraph 7 of Shenavai, cited above).

30. Secondly, the Court has held that subsidies directly linked to the prix of a taxable transaction are only one situation amongst others referred to in Article 11A(1)(a) of the Sixth Directive and that, irrespective of the particular situation in question, the taxable amount in respect of a supply of services is everything which makes up the consideration for the service (see, to that effect, Case C‑353/00 Keeping Newcastle Warm EU:C:2002:369, paragraphs 23 and 25).

46. According to settled case-law, the only defence available to a Member State in opposing an application by the Commission under Article 88(2) EC for a declaration that it has failed to fulfil its Treaty obligations is to plead that it was absolutely impossible for it properly to implement the decision (see, inter alia, Commission v France , paragraph 23, Commission v Spain , paragraph 45, and Case C-415/03 Commission v Greece [2005] ECR I-3875, paragraph 35).

35. It must be added that the action taken by the Greek authorities, that is to say, the adoption of a decision to proceed with recovery of Olympic Airways’ debt of EUR 41 million, had no real effect with regard to the actual reimbursement of that sum by the company. Furthermore, the Greek Government did not provide any explanation as to why it might be absolutely impossible to proceed with the recovery of that debt. According to settled case-law, the only defence available to a Member State in opposing an application by the Commission under Article 88(2) EC for a declaration that it has failed to fulfil its Treaty obligations is to plead that it was absolutely impossible for it properly to implement the decision ordering recovery (see, in particular, Case C-280/95 Commission v Italy [1998] ECR I-259, paragraph 13, and Case C‑378/98 Commission v Belgium [2001] ECR I-5107, paragraph 30).

60 According to the Court’s case-law, benefits which are granted automatically to families that meet certain objective criteria relating in particular to their size, income and capital resources, without any individual and discretionary assessment of personal needs, and which are intended to meet family expenses must be regarded as social security benefits (see to this effect, in particular, judgments of 16 July 1992 in Hughes, C‑78/91, EU:C:1992:331, paragraph 22, and of 10 October 1996 in Hoever and Zachow, C‑245/94 and C‑312/94, EU:C:1996:379, paragraph 27).

23. In order to determine whether an indication of a standard of fineness not provided for by legislation of a Member State provides consumers with equivalent and intelligible information, the Court must take into account the presumed expectations of an average consumer who is reasonably well-informed and reasonably observant and circumspect (see, to that effect, Commission v Ireland , paragraph 32).

32 In order to determine whether an indication in parts per thousand of a standard of fineness not provided for by that legislation provides consumers with equivalent and intelligible information, the Court must take into account, as it has done on several occasions when called upon to consider whether a description, trade mark or promotional description or statement was liable to mislead the purchaser, the presumed expectations of an average consumer who is reasonably well-informed and reasonably observant and circumspect (see inter alia Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraph 31).

130. That general, abstract and vague argument cannot ultimately be capable of establishing in the present case the reality of a breach of the rights of the defence, which must be examined by reference to the specific circumstances of each case (see, by analogy, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , paragraphs 52 to 61).

44. En outre, il y a lieu de relever que l’article 36 de l’accord EEE est analogue à l’article 56 TFUE, de telle sorte que les considérations énoncées aux points 40 à 43 du présent arrêt s’appliquent, en principe, également à l’article 36 de l’accord EEE (voir, notamment, arrêts Commission/Belgique, C‑383/10, EU:C:2013:364, point 71, et Commission/Espagne, C‑678/11, EU:C:2014:2434, point 66).

71. In that regard, it must be observed that that provision of the EEA Agreement is similar to the provision laid down in Article 56 TFEU, so that the considerations relating to that article set out in paragraphs 40 to 69 of this judgment apply, in principle, also to the corresponding article of the EEA Agreement.

83. Accordingly such measures cannot be ordered automatically on general preventive grounds following a criminal conviction or as a means of deterring other foreign nationals from committing offences (see Case C‑303/08 Bozkurt , paragraph 58 and the case-law cited). Although in that regard, the existence of several previous criminal convictions is, in itself, irrelevant for justifying an expulsion depriving a Turkish national of rights he derives directly from Decision No 1/80 (see Polat , paragraph 36), the same must hold all the more true for a justification relating to the duration of any prison terms to which the individual concerned was sentenced.

43 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9).

12ARTICLE 3 OF REGULATION NO 1778/77 IS THEREFORE OF DIRECT AND INDIVIDUAL CONCERN TO THOSE IMPORTERS AND CONSEQUENTLY THE APPLICATIONS LODGED BY THE SUBSIDIARIES , AS IMPORTERS OF NTN PRODUCTS , ARE ADMISSIBLE . AS A RESULT THE APPLICATION LODGED BY NTN AGAINST THAT ARTICLE IS ALSO ADMISSIBLE . THE SUBSTANCE OF THE APPLICATION

35. Admittedly, as the Council of the European Union and the Commission point out, the Court has also made clear that, given the dual purpose of enabling the worker both to rest from carrying out the work he is required to do under his contract of employment and to enjoy a period of relaxation and leisure, the right to paid annual leave acquired by a worker who is unfit for work for several consecutive reference periods can reflect both the aspects of its purpose, as set out in paragraph 31 above, only in so far as the carry-over does not exceed a certain temporal limit ( KHS , paragraphs 31 and 33).

32. The principle of fiscal neutrality, which is laid down in Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967(I), p. 14) and which is inherent in the common system of VAT, as the fourth and fifth recitals in the preamble to the Sixth Directive state, requires that all economic activities should be treated in the same way (Case C-155/94 Wellcome Trust [1996] ECR I-3013, paragraph 38, and Belgocodex , paragraph 18). The same is true of economic operators carrying out the same activities (Case C‑216/97 Gregg [1999] ECR I-4947, paragraph 20).

38 As far as the principle of fiscal neutrality is concerned, this does not have the significance attributed to it by the appellant. While it requires that all economic activities should be treated in the same way, it also assumes that the activity in question can be classified as an economic activity, which is not the position in this case.

80 Consequently, it is appropriate to find that the articles of the Public Health Code relating to the pharmacovigilance obligations, cited in paragraph 77 of this judgment, merely comply with the rules of pharmacovigilance laid down in Directive 2001/82. Those articles cannot thus be classified as measures having an effect equivalent to a quantitative restriction on imports within the meaning of Article 34 TFEU (see, to that effect, judgment of 23 March 2000, Berendse-Koenen, C‑246/98, EU:C:2000:153, paragraph 25).

25 By judgment of 5 October 1994 in Case C-280/93 Germany v Council [1994] ECR I-4973, the Court dismissed the action brought by the Federal Republic of Germany for the annulment of Regulation No 404/93.

74 However, such a difference in treatment appears to be inherent in the objective of integrating previously compartmentalized markets, bearing in mind the different situations of the various categories of economic operators before the establishment of the common organization of the market. The Regulation is intended to ensure the disposal of Community production and traditional ACP production, which entails the striking of a balance between the two categories of economic operators in question.

44. Furthermore, the validity of such an approach is reinforced by the fact that it conforms to the general principle of legal certainty, since taking into account the costs and prices of the dominant undertaking enables that undertaking to assess the lawfulness of its own conduct, which is consistent with its special responsibility under Article 102 TFEU, as stated in paragraph 24 of this judgment. While a dominant undertaking knows its own costs and prices, it does not as a general rule know those of its competitors ( Deutsche Telekom v Commission , paragraph 202).

44 Second, as regards the alleged breach of the principle of equal treatment resulting from the difference in the rules governing the adoption of restrictive measures, namely, that a person is designated by a provision based on Article 215(2) TFEU or by the adoption of an implementing regulation, based on Article 291(2) TFEU, it should be noted that, given its significant negative impact on the freedoms and fundamental rights of the person or of the entity concerned (see, to that effect, judgments in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 358, and Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 132), any inclusion in a list of persons or entities subject to restrictive measures, whether based on Article 215 TFEU or on Article 291(2) TFEU, allows that person or entity access to the Courts of the European Union, in that it is similar, in that respect, to an individual decision, in accordance with the fourth paragraph of Article 263 TFEU (see, to that effect, judgment in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 57), for the purposes of, inter alia, verifying whether that individual decision complies with the general listing criteria laid down in the basic act.

132. Notwithstanding their preventive nature, the restrictive measures at issue have, as regards those rights and freedoms, a substantial negative impact related, first, to the serious disruption of the working and family life of the person concerned due to the restrictions on the exercise of his right to property which stem from their general scope combined, as in this case, with the actual duration of their application, and, on the other, the public opprobrium and suspicion of that person which those measures provoke (see, to that effect, the Kadi judgment, paragraphs 358, 369 and 375; France v People’s Mojahedin Organization of Iran , paragraph 64; Al-Aqsa v Council and Netherlands v Al-Aqsa , paragraph 120, and the judgment of 28 May 2013 in Case C‑239/12 P Abdulrahim v Council and Commission [2013] ECR I‑0000, paragraph 70 and case-law cited).

35 Admittedly, it is settled case-law that a complainant is entitled to have any uncertainty as to the outcome of his complaint dispelled by means of a Commission decision, which may be the subject-matter of an application for judicial review (Case C-282/95 P Guérin automobiles v Commission [1997] ECR I-1503, paragraph 36). However, Article 3 of Regulation No 17 does not give a person making an application under that article the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission to continue the proceedings, whatever the circumstances, right up to the stage of a final decision (Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 18, and Case Ufex and Others v Commission [1999] ECR I-1341, paragraph 87).

34. The principle of equal treatment thus laid down also entails an obligation of transparency (see, to that effect, in relation to public supply contracts, Case C‑275/98 Unitron Scandinavia and 3-S [1999] ECR 8291, paragraph 31, and, in relation to public works contracts, SIAC Construction , paragraph 41).

31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.

48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27).

33. With regard to objective justification of such a restriction, it is to be borne in mind that the Court has on several occasions held that planning requirements relating, on the one hand, to the object of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned and, on the other, to the wish to control costs and avoid, so far as possible, any waste of financial, technical and human resources may justify the requirement of prior authorisation for financial responsibility on the part of the competent institution for treatment proposed in another Member State (see, to that effect, Case C‑157/99 Smits and Peerbooms [2001] ECR I‑5473, paragraphs 76 to 81; Müller-Fauré and van Riet , paragraphs 76 to 81, and Watts , paragraphs 108 to 110).

81 Looking at the system set up by the ZFW, it is clear that, if insured persons were at liberty, regardless of the circumstances, to use the services of hospitals with which their sickness insurance fund had no contractual arrangements, whether they were situated in the Netherlands or in another Member State, all the planning which goes into the contractual system in an effort to guarantee a rationalised, stable, balanced and accessible supply of hospital services would be jeopardised at a stroke.

21. First, it is apparent from the significance of the discretion accorded to the Member States, referred to in paragraph 14 above, that the Commission’s power of review must be limited to determining whether the Member States have committed any manifest errors of assessment in designating events of major importance. In order to verify whether such an error of assessment has been committed, the Commission must therefore, inter alia, examine, carefully and impartially, all the relevant facts of the individual case, facts which support the conclusions reached (see, by analogy, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, and Case C‑77/09 Gowan Comércio Internacional e Serviços [2010] ECR I‑13533, paragraphs 56 and 57).

39 Under that provision, matters relating to a contract may be assessed in the courts of the place of performance of the obligation in question, namely the obligation corresponding to the contractual right on which the claimant’s action is based (see, to that effect, judgment of 6 October 1976, De Bloos, 14/76, EU:C:1976:134, paragraphs 10 to 14). In the present case, the action in the main proceedings is based on the alleged invalidity of the contractual obligation consisting of the conveyance of ownership of the immovable property, which, provided that the contract is valid, must be, and which was initially, performed in Austria.

11 ON THE CONTRARY , THE WORD ' OBLIGATION ' IN THE ARTICLE REFERS TO THE CONTRACTUAL OBLIGATION FORMING THE BASIS OF THE LEGAL PROCEEDINGS .

34. It should be emphasised that the wording of Article 13B(d)(1) of the Sixth Directive does not, in principle, preclude the activity of negotiation from being broken down into separate services which may then fall under the concept of ‘negotiation of credit’ for the purposes of that provision and benefit from the exemption for which it provides (see, to that effect: with regard to Article 13B(d)(3) of the Sixth Directive, SDC , paragraph 64; with regard to Article 13B(d)(5) of that directive, CSC Financial Services , paragraph 23; and with regard to Article 13B(d)(6) of that directive, Abbey National , paragraph 67).

48 However, in the light of the ubiquitous nature of the information and content placed online on a website and the fact that the scope of their distribution is, in principle, universal (see, to that effect, judgment of 25 October 2011, eDate Advertising and Others, C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 46), an application for the rectification of the former and the removal of the latter is a single and indivisible application and can, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage pursuant to the case-law resulting from the judgments of 7 March 1995, Shevill and Others (C‑68/93, EU:C:1995:61, paragraphs 25, 26 and 32), and of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paragraphs 42 and 48), and not before a court that does not have jurisdiction to do so.

42. In relation to the application of those two connecting criteria to actions seeking reparation for non-material damage allegedly caused by a defamatory publication, the Court has held that, in the case of defamation by means of a newspaper article distributed in several Contracting States, the victim may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all of the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised ( Shevill and Others , paragraph 33).

36. In that regard, it should be noted that, in so far as the articles at issue in the main proceedings were subject to additional marking only as a supplement to a hallmark affixed by an independent assay office authorised by the Member State of exportation, in this case the Republic of Poland, that hallmark functions as a guarantee (see, to that effect, Houtwipper , paragraph 19).

45. It should be stated from the outset in this connection that, in accordance with the case-law of the Court, the term ‘establishment’, which is not defined in Directive 98/59, is a term of EU law and cannot be defined by reference to the laws of the Member States (see, to that effect, judgment in Rockfon , C‑449/93, EU:C:1995:420, paragraph 25). It must, on that basis, be interpreted in an autonomous and uniform manner in the EU legal order (see, to that effect, judgment in Athinaïki Chartopoiïa , C‑270/05, EU:C:2007:101, paragraph 23).

23. According to the Court’s case-law, the concept of ‘establishment’, which is not defined in that directive, is a term of Community law and cannot be defined by reference to the laws of the Member States (Case C‑449/93 Rockfon [1995] ECR I‑4291, paragraphs 23 and 25). It must, a ccordingly, be interpreted in an autonomous and uniform manner in the Community legal order.

30. For the purposes of determining whether a product must be classified as a medicinal product or as a foodstuff within the meaning of the Community regulations, the competent national authority must decide on a case-by-case basis, taking account of all the characteristics of the product, in particular its composition, its pharmacological properties, to the extent to which they can be established in the present state of scientific knowledge, the manner in which it is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail (see Van Bennekom , cited above, paragraph 29; Case C-369/88 Delattre [1991] ECR I-1487, paragraphs 26 and 35; Case C-60/89 Monteil and Samanni [1991] ECR I-1547, paragraph 29; Case C-112/89 Upjohn (‘ Upjohn I ’) [1991] ECR I-1703, paragraph 23; Case C-290/90 Commission v Germany [1992] ECR I-3317, paragraph 17; and Case C-150/00 Commission v Austria [2004] ECR I-3891, paragraph 64).

22 With regard to the other measures which, according to the French Government, are intended to provide the SPAs with a sufficient protection regime, it must be borne in mind that, according to the Court's case-law, Article 4(1) and (2) of the Birds Directive requires the Member States to provide SPAs with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the Directive and the breeding, moulting and wintering of migratory species not listed in Annex I which are, nevertheless, regular visitors (see, to this effect, Case C-355/90 Commission v Spain [1993] ECR I-4221, paragraphs 28 to 32, and Case C-166/97 Commission v France, cited above, paragraph 21).

21 As regards the other measures which, according to the French Government, are intended to provide the SPA with an adequate protection regime, it must be borne in mind that, according to the case-law of the Court, Article 4(1) and (2) of the Wild Birds Directive requires the Member States to provide SPAs with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species not listed in Annex I which are, nevertheless, regular visitors (see, to this effect, Case C-355/90 Commission v Spain [1993] ECR I-4221, at paragraphs 28 to 32).

40. It must be remembered first of all that the Sixth Directive establishes a common system of VAT based, inter alia, on a uniform definition of taxable transactions (Case C-305/01 MGK-Kraftfahrzeuge-Factoring [2003] ECR I-6729, paragraph 38).

31. Mr Ipatau makes reference to the judgment in Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 119 and 121), pursuant to which it is for the Council to adduce evidence that the grounds which are the basis of the decision to include or to continue to include a person in a list of persons subject to sanctions are well founded, and the judgment in Tay Za v Council (C‑376/10 P, EU:C:2012:138, paragraph 71), by which the Court condemned the making of any assumptions about a person, or the inclusion of that person in such a list purely on the basis of their links with other persons. He submits that the General Court erred in law in ruling that the grounds of the disputed acts were sufficient to establish his responsibility for the violations of international electoral standards which occurred during the Presidential elections of 19 December 2010. In that regard, Mr Ipatau argues, first, that there was no reason for him to dissociate himself from the work of the CEC.

120. To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see, by analogy, ZZ , paragraph 59).

26. The right to deduct, provided for in Article 17 et seq. of the Sixth Directive, is an integral part of the VAT scheme and, in principle, may not be limited (Case C‑243/03 Commission v France [2005] ECR I‑8411, paragraph 28 and case-law cited, and Case C‑488/07 Royal Bank of Scotland [2008] ECR I‑10409, paragraph 14).

59. Toutefois, il n’appartient pas à la Cour, lorsqu’elle se prononce sur des questions de droit dans le cadre d’un pourvoi, de substituer, pour des motifs d’équité, son appréciation à celle du Tribunal statuant, dans l’exercice de sa pleine juridiction, sur le montant des amendes infligées à des entreprises en raison de la violation, par celles-ci, du droit communautaire (voir arrêts du 17 juillet 1997, Ferriere Nord/Commission, C‑219/95 P, Rec. p. I‑4411, point 31; Baustahlgewebe/Commission, précité, point 129, et British Sugar/Commission, précité, point 48).

129 As regards the allegedly disproportionate nature of the fine, it must be borne in mind that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (BPB Industries and British Gypsum v Commission, cited above, paragraph 34, and Ferriere Nord v Commission, cited above, paragraph 31). This complaint must therefore be declared inadmissible in so far as it seeks a general re-examination of the fines or, in the alternative, to have the fine reduced to a reasonable amount. The same applies to the complaint, not made by the appellant before the Court of First Instance, concerning its alleged ignorance of the illicit nature of the conduct designed to defend the German structural crisis cartel, as pointed out by the Advocate General in point 286 of his Opinion.

30. As regards, first, the question whether the aim pursued by the national legislation at issue is legitimate, the Court has consistently held that Member States enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see the judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 46 and the case-law cited).

51. A cash-flow disadvantage which arises from a cross-border situation can form a restriction on a fundamental freedom where such a disadvantage does not arise in a purely national situation (see, to that effect, judgments in Metallgesellschaft and Others , C‑397/98 and C‑410/98, EU:C:2001:134, paragraphs 44, 54 and 76; X and Y , C‑436/00, EU:C:2002:704, paragraphs 36 and 37; Rewe Zentralfinanz , C‑347/04, EU:C:2007:194, paragraphs 26 to 30; National Grid Indus , C‑371/10, EU:C:2011:785, paragraphs 36 and 37; DMC , C‑164/12, EU:C:2014:20, paragraphs 40 to 43; and Commission v Germany , C‑591/13, EU:C:2015:230, paragraphs 55 to 61).

43. It follows that the different treatment, under the legislation at issue in the main proceedings, of investors who hold an interest in a limited partnership that is converted into shares in a capital company and who, as a result of that transaction, are no longer liable to tax in Germany on the income they make in that Member State, as compared with investors who, in the same circumstances, remain liable to such tax, constitutes a restriction that is, in principle, prohibited by the provisions of the FEU Treaty on free movement of capital. Whether the restriction on free movement of capital is justified

45 Freedom of establishment, which Article 49 TFEU grants to nationals of the Member States and which includes the right for them to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 54 TFEU, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (see, in particular, judgment of 13 December 2005, Marks & Spencer, C‑446/03, EU:C:2005:763, paragraph 30 and the case-law cited).

7 It must be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-69/99 Commission v United Kingdom [2000] ECR I-10979, paragraph 22; Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26, and Case C-110/00 Commission v Austria [2001] ECR I-7545, paragraph 13).

26 It must be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-384/99 Commission v Belgium [2000] ECR I-10633, paragraph 16).

105. En tout état de cause, 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 valable des obligations de transposition d’une directive (voir arrêt du 12 juillet 2007, Commission/Autriche, C‑507/04, Rec. p. I‑5939, point 162 et jurisprudence citée). De même, une interprétation, par les juridictions nationales, des dispositions de droit interne conformément à celles d’une directive ne peut, à elle seule, présenter la clarté et la précision requises pour satisfaire à l’exigence de sécurité juridique (voir arrêt Commission/Irlande, précité, point 47 et jurisprudence citée).

53 According to Article 8(1), the jurisdiction of a court must be established ‘at the time the court is seised’, that is to say, at the time when the document instituting the proceedings is lodged with the court, in accordance with Article 16 of that regulation (see, to that effect, judgment of 1 October 2014, E., C‑436/13, EU:C:2014:2246, paragraph 38).

38. In that regard, it should be noted that the jurisdiction of a court must be established, according to Articles 8(1) and 12(3) of Regulation No 2201/2003, ‘at the time the court is seised’. In that regard, Article 16 of that regulation states that a court is deemed to be seised of a dispute, in principle, ‘at the time when the document instituting the proceedings … is lodged with the court’.

25. It should be pointed out in that connection that a classification regulation, such as, in this case, Regulation No 306/2001, is adopted by the Commission on the advice of the Customs Code Committee where the classification in the CN of a particular product is such as to give rise to difficulty or to be a matter for dispute (see Case C-119/99 Hewlett Packard [2001] ECR I-3981, paragraph 18).

71. It should be noted that the right to rely on the principle of the protection of legitimate expectations extends to any individual in a situation in which it appears that the Community administration has led him to entertain reasonable expectations (see, to that effect, Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC [1987] ECR 1155, paragraph 44, and Joined Cases C‑37/02 and C‑38/02 Di Lenardo and Dilexport [2004] ECR I‑6911, paragraph 70).

44 THE COURT HAS CONSISTENTLY HELD THAT ANY TRADER IN REGARD TO WHOM AN INSTITUTION HAS GIVEN RISE TO JUSTIFIED HOPES MAY RELY ON THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION . ON THE OTHER HAND, IF A PRUDENT AND DISCRIMINATING TRADER COULD HAVE FORESEEN THE ADOPTION OF A COMMUNITY MEASURE LIKELY TO AFFECT HIS INTERESTS, HE CANNOT PLEAD THAT PRINCIPLE IF THE MEASURE IS ADOPTED ( JUDGMENT OF 1 FEBRUARY 1978 IN CASE 78/77 LUEHRS V HAUPTZOLLAMT HAMBURG-JONAS (( 1978 )) ECR 169 ).

65. As the Court held in paragraphs 49 and 61 of Parviainen , concerning a pregnant worker temporarily transferred to another job during and because of her pregnancy under Article 5(2) of Directive 92/85, the Member States and, where appropriate, management and labour are not required under Article 11(1) of that directive to maintain, during the temporary transfer, the pay components or supplements which are dependent on the performance by the worker concerned of specific functions in particular circumstances and which are intended essentially to compensate for the disadvantages related to that performance. The same applies to a pregnant worker granted leave from work under Article 5(3) of that directive and the relevant provisions of national law.

80 However, that cannot lead to other operators being retrospectively exonerated from the royalties in question. Persons liable to pay an obligatory contribution cannot rely on the argument that the exemption enjoyed by other persons constitutes State aid in order to avoid payment of that contribution (see, to that effect, the judgments in Case C-437/97 EKW and Wein & Co. [2000] ECR I-1157, paragraphs 51 to 53, and Case C-36/99 Idéal Tourisme v Belgian State [2000] ECR I-6049, paragraphs 26 to 29). Therefore, even in particular circumstances such as those referred to in paragraphs 77 to 79 of this judgment, in view of the classification of the measure in question as aid, claims such as those made by Banks in the main proceedings cannot be accepted. That is, however, without prejudice to any actions which British Coal's former competitors might bring, if the conditions were met, for compensation for any damage caused to them by the competitive advantage enjoyed by British Coal and the State companies which succeeded it. Article 4(b) of the ECSC Treaty, in so far as it concerns discrimination between producers

52 It should first be pointed out in this regard that, according to consistent case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59). Nevertheless, the Court has held that it has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Bosman, cited above, paragraph 61, and judgment of 15 June 1999 in Case C-421/97 Tarantik v Direction des Services Fiscaux de Seine-et-Marne [1999] ECR I-0000, paragraph 33).

42 In addition, it is to be noted that in the judgment in Halifax the Court did not restrict the temporal effects of the interpretation which it gave to the principle that abusive practices are prohibited in the sphere of VAT. Such a restriction can be allowed only in the actual judgment ruling upon the interpretation requested, a requirement which guarantees the equal treatment of the Member States and of other persons subject to EU law, under that law, and thereby fulfils the requirements arising from the principle of legal certainty (see, to that effect, judgments of 6 March 2007, Meilicke and Others, C‑292/04, EU:C:2007:132, paragraph 36, and of 23 October 2012, Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 91).

113. As regards a decision whereby, as in this case, the name of the individual concerned is to be maintained on the list in Annex I to Regulation No 881/2002, compliance with that dual procedural obligation must, contrary to the position in respect of an initial listing (see, in that regard, the Kadi judgment, paragraphs 336 to 341 and 345 to 349, and France v People’s Mojahedin Organization of Iran , paragraph 61), precede the adoption of that decision (see France v People’s Mojahedin Organization of Iran , paragraph 62). It is not disputed that, in the present case, the Commission, the author of the contested regulation, complied with that obligation.

62. In contrast, in the case of a subsequent decision to freeze funds by which the inclusion of the name of a person or entity already appearing in the list referred to in Article 2(3) of Regulation No 2580/2001 is maintained, that surprise effect is no longer necessary in order to ensure that the measure is effective, with the result that the adoption of such a decision must, in principle, be preceded by notification of the incriminating evidence and by allowing the person or entity concerned an opportunity of being heard.

52. For a finding that such overlapping is present in a given case, it is not enough, for example, for such benefits to be due in the relevant child’s Member State of residence and to be, in parallel, merely capable of being due in another Member State, where one of the parents of that child works (see, by analogy, McMenamin , paragraph 26).

90. As the Court has already pointed out, ‘negligence’ entails an act or omission by which the party responsible breaches the duty of care which it should have discharged, and could have discharged, in view of its attributes, knowledge and abilities (see, to that effect, Case C‑308/06 Intertanko and Others [2008] ECR I‑0000, paragraph 74 to 77).

74. Next, those concepts are fully integrated into, and used in, the Member States’ respective legal systems.

8. D’autre part, selon une jurisprudence constante, un État membre ne saurait exciper de dispositions, de pratiques ou de situations de son ordre juridique interne pour justifier l’inobservation des obligations et des délais prescrits par une directive (voir, notamment, arrêts du 9 septembre 2004, Commission/Espagne, C‑195/02, Rec. p. I‑7857, point 82; du 18 juillet 2006, Commission/Italie, C‑119/04, Rec. p. I‑6885, point 25, et du 15 novembre 2007, Commission/Espagne, C‑59/07, non publié au Recueil, point 22).