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51. In that connection, according to settled case-law, the improvement of road safety is an objective of general interest of the European Union (see, to that effect, inter alia, Case C‑55/93 van Schaik EU:C:1994:363, paragraph 19; Case C‑451/99 Cura Anlagen EU:C:2002:195, paragraph 59; Case 54/05 Commission v Finland EU:C:2007:168, paragraph 40; Case C‑110/95 Commission v Italy EU:C:2009:66, paragraph 60; Case C‑384/08 Attanasio Group EU:C:2010:133, paragraph 50; Case C‑438/08 Commission v Portugal EU:C:2009:651, paragraph 48; Case C‑184/10 Grasser EU:C:2011:324, paragraph 26; and Case C‑224/10 Apelt EU:C:2011:655, paragraph 47). By laying down, in Annex III thereto, a minimum threshold of visual acuity for the worse eye for drivers in group 2, for the purposes of that annex, Directive 2006/126 aims to improve road safety and thus to attain an objective of general interest.

47. It would therefore be contrary to the objective of road safety mentioned in the first and fourth recitals in the preamble to Directive 91/439 not to allow a host Member State to refuse to recognise a driving licence for vehicles in category D issued on the basis of a driving licence for vehicles in category B which is vitiated by a defect justifying the non-recognition of that latter licence.

53. Rules which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (see, inter alia, Case C-318/05 Commission v Germany [2007] ECR I-6957, paragraph 115).

70 It follows that a request for a preliminary ruling concerning the validity of an act of the European Union can be dismissed only in the event that, although the action for annulment of an act of the European Union would unquestionably have been admissible, the natural or legal person capable of bringing such an action abstained from doing so within the prescribed period and is pleading the unlawfulness of that act in national proceedings in order to encourage the national court to submit a request for a preliminary ruling to the Court of Justice concerning the validity of that act, thereby circumventing the fact that that act is final as against him once the time limit for his bringing an action has expired (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 18, and of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 30).

18 To accept that in such circumstances the person concerned could challenge the implementation of the decision in proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time-limit for bringing an action has expired.

26. L’article 110 TFUE a pour objectif d’assurer la libre circulation des marchandises entre les États membres dans des conditions normales de concurrence. Il vise l’élimination de toute forme de protection pouvant résulter de l’application d’impositions intérieures discriminatoires à l’égard des produits originaires d’autres États membres (arrêt Tatu, précité, point 34 et jurisprudence citée).

58 That said, it is settled case-law of the Court of Justice that the principle of equal treatment, relied on by the appellants, must be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party (judgment of 10 November 2011 in The Rank Group, C‑259/10 and C‑260/10, EU:C:2011:719, paragraph 62 and the case-law cited).

62. Although a public administration following a general practice may be bound by that practice (see, to that effect, Case 268/84 Ferriera Valsabbia v Commission [1987] ECR 353, paragraphs 14 and 15, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 211), the fact remains that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see, to that effect, Case 188/83 Witte v Parliament [1984] ECR 3465, paragraph 15; Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14, and Case C‑51/10 P Agencja Wydawnicza Technopol v OHIM [2011] ECR I‑0000, paragraphs 75 and 76).

30. It is significant in that connection that the directive also embodies the rule that a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety, since it is only where the employment relationship is terminated that Article 7(2) permits an allowance to be paid in lieu of paid annual leave ( BECTU , paragraph 44).

27. On the other hand, if those courts or tribunals consider that recourse to European Union law is necessary to enable them to decide a case, Article 267 TFEU imposes, in principle, an obligation on them to refer to the Court of Justice any question of interpretation which may arise (see Cilfit and Others , paragraphs 11 to 20).

15 HOWEVER , IT MUST NOT BE FORGOTTEN THAT IN ALL SUCH CIRCUMSTANCES NATIONAL COURTS AND TRIBUNALS , INCLUDING THOSE REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 177 , REMAIN ENTIRELY AT LIBERTY TO BRING A MATTER BEFORE THE COURT OF JUSTICE IF THEY CONSIDER IT APPROPRIATE TO DO SO .

46 In that respect, the Court has also stated that since Article 23 of Regulation No 44/2001 does not contain any reference to forms of publicity, it must be held that, although any publicity which might be given in associations or specialised bodies to the standard forms on which a jurisdiction clause appears may help to prove that a practice is generally and regularly followed, such publicity cannot be a requirement for establishing the existence of a usage (judgment of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 28).

17. As the Advocate General observed at points 16 and 17 of her Opinion, in order for such items to fall within the scope of the basis of assessment, even though they do not represent any added value and do not constitute the financial consideration for the supply of the goods, they must be directly linked to that supply (see to that effect Case 230/87 Naturally Yours Cosmetics [1988] ECR 6365, paragraphs 11 and 12; Case C-33/93 Empire Stores [1994] ECR I-2329, paragraph 12; and Case C-380/99 Bertelsmann [2001] ECR I-5163, paragraphs 17 and 18).

11 According to the judgment of 5 February 1981 in Case 154/80 Staatssecretaris van Financïen v Cooeperatieve Aardappelenbewaarplaats (( 1981 )) ECR 445, the basis of assessment for a service is everything which makes up the consideration for the service; there must therefore be a direct link between the service provided and the consideration received if the supply of a service is to be taxable under the Second Directive .

71. However, it must be borne in mind that the provisions of the Charter are, according to Article 51(1) thereof, addressed to the Member States only when they are implementing European Union law. Under Article 51(2), the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it ( McB. , paragraph 51, see also Joined Cases C-483/09 and C-1/10 Gueye and Salmerón Sánchez [2011] ECR I‑0000, paragraph 69).

34 The deduction rules thus established are intended to free the taxable person completely of the burden of the VAT accruing or paid in all its economic activities. The common system of VAT therefore ensures that all economic activities, whatever their purpose or results, provided that they are, in principle, themselves subject to VAT, are taxed in a neutral way (judgments of 14 February 1985, Rompelman, 268/83, EU:C:1985:74, paragraph 19; of 6 July 2006, Kittel and Recolta Recycling, C‑439/04 and C‑440/04, EU:C:2006:446, paragraph 48; and of 26 April 2017, Farkas, C‑564/15, EU:C:2017:302, paragraph 43).

48. The rules governing deduction are meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that those activities are themselves subject in principle to VAT (see, inter alia, Case C‑408/98 Abbey National [2001] ECR I‑1361, paragraph 24, and Case C‑25/03 HE [2005] ECR I‑3123, paragraph 70).

37. The general interest underlying Article 7(1)(c) of Regulation No 40/94 is that of ensuring that descriptive signs relating to one or more characteristics of the goods or services in respect of which registration as a mark is sought may be freely used by all traders offering such goods or services (see, to that effect, OHIM v Wrigley , paragraph 31 and the case-law cited).

22. It should be borne in mind in this regard that any activity consisting in offering goods or services on a given market is an economic activity (see, in particular, Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraph 36, and Joined Cases C‑180/98 to C‑184/98 Pavlov and Others [2000] ECR I‑6451, paragraph 75). Provided that that condition is satisfied, the fact that an activity has a connection with sport does not hinder the application of the rules of the Treaty (Case 36/74 Walrave and Koch [1974] ECR 1405, paragraph 4, and Case C‑415/93 Bosman [1995] ECR I-4921, paragraph 73) including those governing competition law (see, to that effect, Case C‑519/04 P Meca‑Medina and Majcen v Commission [2006] ECR I‑6991, paragraphs 22 and 28).

36 It must first be noted that, according to settled case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Case C-244/94 Fédération Française des Sociétés d'Assurances and Others v Ministère de l'Agriculture et de la Pêche [1995] ECR I-4013, paragraph 14; and Case C-55/96 Job Centre [1997] ECR I-7119, paragraph 21), and that any activity consisting in offering goods and services on a given market is an economic activity (Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7).

48. In this part, ClientEarth maintains that that concept presupposes the existence of a formal decision of the Commission as a college. ClientEarth refers, in that regard, to the judgments in Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376); Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393); LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738); WWF UK v Commission (T‑105/95, EU:T:1997:26); Bavarian Lager v Commission (T‑309/97, EU:T:1999:257); Petrie and Others v Commission (T‑191/99, EU:T:2001:284); and API v Commission (T‑36/04, EU:T:2007:258).

59. Il convient de rappeler que les exigences de sécurité publique doivent, notamment en tant que dérogation au principe fondamental de la libre circulation des marchandises, être entendues strictement, de sorte que leur portée ne saurait être déterminée unilatéralement par chacun des États membres sans contrôle des institutions de la Communauté européenne. Ainsi, la sécurité publique ne saurait être invoquée qu’en cas de menace réelle et suffisamment grave, affectant un intérêt fondamental de la société (voir, par analogie, arrêt du 14 mars 2000, Église de scientologie, C-54/99, Rec. p. I‑1335, point 17). En l’espèce, force est de constater que les mesures litigieuses ne visent pas à la sauvegarde d’intérêts fondamentaux tels que la sécurité de l’approvisionnement en pétrole ou en biens d'importance stratégique (voir, notamment, arrêts du 10 juillet 1984, Campus Oil e.a., 72/83, Rec. p. 2727; du 4 octobre 1991, Richardt et «Les Accessoires Scientifiques», C‑367/89, Rec. p. I‑4621, et du 17 octobre 1995, Leifer e.a., C‑83/94, Rec. p. I‑3231). Par conséquent, cette justification doit être écartée.

17 It should be observed, first, that while Member States are still, in principle, free to determine the requirements of public policy and public security in the light of their national needs, those grounds must, in the Community context and, in particular, as derogations from the fundamental principle of free movement of capital, be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions (see, to this effect, Case 36/75 Rutili v Minister for the Interior [1975] ECR 1219, paragraphs 26 and 27). Thus, public policy and public security may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see, to this effect, Rutili, cited above, paragraph 28, and Case C-348/96 Calfa [1999] ECR I-11, paragraph 21). Moreover, those derogations must not be misapplied so as, in fact, to serve purely economic ends (to this effect, see Rutili, paragraph 30). Further, any person affected by a restrictive measure based on such a derogation must have access to legal redress (see, to this effect, Case 222/86 Unectef v Heylens and Others [1987] ECR 4097, paragraphs 14 and 15).

58 However, in proceedings for a preliminary ruling, it is not for this Court but for the national court to determine which obligations are imposed by an earlier agreement on the Member State concerned and to ascertain their ambit so as to be able to determine the extent to which they thwart application of the provisions of Community law in question (see Case C-324/93 Evans Medical and Macfarlan Smith, cited above, paragraph 29).

28. The Court has also ruled on the consequences of the accession of a new Member State, in particular the accession of the Kingdom of Spain, to the European Community. It held that such an event cannot in itself produce legal effects, since the conditions of accession are set out in the Act of accession (see Case C‑70/90 Spain v Council , paragraph 16). As regards the Kingdom of Spain, it stated that, pursuant to Article 2 of the Act of accession, the acquis communautaire , that is to say the provisions of the original Treaties and the acts adopted by the institutions of the Communities before accession, must be applied, in particular the principle of relative stability as applied in 1983 (see Joined Cases C‑63/90 and C‑67/90 Portugal and Spain v Council [1992] ECR I‑5073, paragraphs 31, 32 and 34, and Case C‑70/90 Spain v Council , paragraphs 19 and 29).

29 In so far as the Act of Accession did not change the existing situation as regards the distribution of external resources, the existing Community rules continue to be applicable. Accordingly, the new Member States cannot rely on circumstances antedating accession, in particular their fishing activities during the reference period, in support of their contention that the provisions in question should not be applied. Since their accession, they have been in the same position as the Member States excluded from the distributions under the principle of relative stability of fishing activities, which was reflected, as far as the agreements concluded before accession are concerned, in the distribution effected in 1983. This conclusion cannot be undermined by the fact that, as a result of their accession, the new Member States no longer have the power to conclude independent agreements, which places them in a situation identical to that of all the other Member States, or by the fact that they did not receive anything in return for the external resources which they brought into the Community.

29 It would be otherwise if that rule were withdrawn from the domestic legal system by a decision subsequent to the date of accession but with retroactive effect from before that date, thereby eliminating the provision in question as regards the past.

20. According to consistent case-law, in a case concerning a shareholding which gives its holder definite influence over the company’s decisions and allows that holder to determine the company’s activities, it is the provisions of the EC Treaty on the freedom of establishment that are to be applied (Case C-251/98 Baars [2000] ECR I-2787, paragraphs 21 and 22; Case C-436/00 X and Y [2002] ECR I-10829, paragraphs 37 and 66 to 68; Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 31; and Test Claimants in Class IV of the ACT Group Litigation , paragraph 39).

31. In accordance with settled case-law, national provisions which apply to holdings by nationals of the Member State concerned in the capital of a company established in another Member State, giving them definite influence on the company’s decisions and allowing them to determine its activities come within the substantive scope of the provisions of the Treaty on freedom of establishment (see, to that effect, Case C-251/98 Baars [2000] ECR I-2787, paragraph 22, and Case C-436/00 X and Y [2002] ECR I-10829, paragraph 37).

45. A provision of European Union law is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States. It is sufficiently precise to be relied on by an individual and applied by a court where it sets out an obligation in unequivocal terms (see, in particular, Cooperativa Agricola Zootecnica S. Antonio and Others , paragraph 19, and Case C‑317/05 Pohl-Boskamp [2006] ECR I‑10611, paragraph 41).

37 However, that cannot mean that the second subparagraph of Article 13(1) of the VAT Directive should be interpreted in such a way that the derogation from treatment as a taxable person for VAT laid down in the first subparagraph of Article 13(1) of the directive for bodies governed by public law acting as public authorities is deprived of effectiveness (see, to that effect, judgment of 20 November 2003, Taksatorringen, C‑8/01, EU:C:2003:621, paragraphs 61 and 62, and of 25 March 2010, Commission v Netherlands, C‑79/09, not published, EU:C:2010:171, paragraph 49).

61. It is, admittedly, true that it follows from the case-law cited in paragraph 36 of the present judgment that the terms used to designate the exemptions referred to in Article 13 of the Sixth Directive must be construed strictly.

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).

20 It is settled case-law, confirmed in Case C-382/92 Commission v United Kingdom [1994] ECR I-2435, paragraph 55, and Case C-383/92 Commission v United Kingdom [1994] ECR I-2479, paragraph 40, that where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national legislation, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.

55 Where a Community directive does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive (see, with regard to Community regulations, the judgments in Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 23 and 24, and in Case C-7/90 Vandevenne and Others [1991] ECR I-4371, paragraph 11).

34. It should be added in that respect that, with regard to third party proceedings, Article 6(2) merely determines which court has jurisdiction and is not concerned with conditions for admissibility properly so-called. As regards procedural rules, reference must be made to the nation al rules applicable by the national court (Case C-365/88 Hagen [1990] ECR I-1845, paragraphs 18 and 19).

33. Moreover, as is evident from recitals 2 and 12 in the preamble thereto, the purpose of Directive 2003/6 is to protect the integrity of the European Union financial markets and to enhance investor confidence in those markets. That confidence depends on, inter alia, investors being placed on an equal footing and protected against the improper use of insider information (see, to that effect, Case C-45/08 Spector Photo Group and Van Raemdonck [2009] ECR I-12073, paragraph 47, and Case C-445/09 IMC Securities [2011] ECR I-5917, paragraph 27).

47. To that end, reference needs to be made to the purpose of Directive 2003/6. As is apparent from its title, that directive seeks to tackle market abuse. The second and twelfth recitals in the preamble thereto state that, following the example of Directive 89/592, it prohibits insider dealing with the aim of protecting the integrity of financial markets and enhancing investor confidence, a confidence which depends, inter alia, on investors being placed on an equal footing and protected against the improper use of inside information (see, by analogy, Case C‑384/02 Grøngaard and Bang [2005] ECR I‑9939, paragraphs 22 and 33).

29. As for the question whether the contested Directive could legitimately be adopted on the basis of Article 31 EA, it is clear from settled case-law that the choice of legal basis for a measure must rest on objective factors that are amenable to judicial review; these include the purpose and content of that measure (see, inter alia, judgments in Parliament v Council , EU:C:1991:373, paragraph 9; Parliament v Council , C‑130/10, EU:C:2012:472, paragraph 42; Commission v Council , C‑137/12, EU:C:2013:675, paragraph 52; and Commission v Parliament and Council , C‑43/12, EU:C:2014:298, paragraph 29).

49 It follows from those provisions that the Council, voting unanimously on the initiative of any Member State or of the Commission, may adopt legislative acts with any aim that is consistent with those of Title VI of the EU Treaty, with the exception, however, of the areas referred to in Article 34(2)(a) and (b) EU, and, voting by majority, may adopt the measures necessary for the implementation of those acts at EU level (see, to that effect, judgment of 10 September 2015, Parliament v Council,C‑363/14, EU:C:2015:579, paragraphs 60 to 66). In both cases, those measures can be adopted only after the Parliament has been consulted (see, to that effect, judgment of 16 April 2015, Parliament v Council, C‑540/13, EU:C:2015:224, paragraph 36).

65. That interpretation is supported by the context of Article 34(2)(c) EC, which must be taken into account for the interpretation of that provision (see, to that effect, judgment in M’Bodj , C‑542/13, EU:C:2014:2452, paragraph 34 and the case-law cited).

72. It follows that the possibility that persons insured under the Spanish national health system might be induced to return early to Spain in order to receive hospital treatment there which has been made necessary by a deterioration in their health during a temporary stay in another Member State, or to cancel a trip to another Member State – for tourism or study, for example – because, if their case does not fall within the scope of the second sentence of Article 4(3) of Royal Decree 1030/2006, they cannot count on the competent institution making a complementary contribution if the cost of equivalent treatment in Spain exceeds the level of cover applicable in that other Member State, appears too uncertain and indirect. Accordingly, the legislation at issue cannot, in general terms, be regarded as restricting the freedom to provide hospital treatment services, tourist services or educational services (see, by analogy, regarding the free movement of goods and freedom of movement for workers respectively, Case C‑69/88 Krantz [1990] ECR I‑583, paragraph 11, and Case C‑190/98 Graf [2000] ECR I‑493, paragraphs 24 and 25).

52 Article 95 of the Treaty seeks to guarantee the complete neutrality of internal charges as regards competition between products already on the domestic market and imported products (see, to that effect, Case C-47/88 Commission v Denmark [1990] ECR I-4509, paragraph 9, and Nunes Tadeu, paragraph 18).

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 .

42. Article 1 of that protocol takes the form of a standstill clause. In other words, that provision aims to ensure that bananas from ACP States have access to their traditional markets upon conditions and according to rules which are no less favourable than those which existed when it entered into force. However, that guarantee of access benefits bananas from ACP States only up to the quantities imported when that provision entered into force ( Chiquita Italia , paragraph 59).

29. The presumption of relevance attaching to questions referred for a preliminary ruling by a national court may be set aside only exceptionally, where it is quite obvious that the interpretation of the provisions 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, to that effect, inter alia Paint Graphos and Others , paragraph 31 and the case-law cited).

31. According to settled case-law, questions on the interpretation of European Union 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 for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Unon 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 (Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22; Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I‑0000, paragraph 27; and Bruno and Others , paragraph 19).

156. Thus, the Court has already held that a national provision under which only fixed-term contracts that are separated by a period of time shorter than or equal to 20 working days are regarded as successive must be considered to be such as to compromise the object, the aim and the practical effect of the Framework Agreement. So inflexible and restrictive a definition of when a number of subsequent employment contracts are successive would allow insecure employment of a worker for years since, in practice, the worker would as often as not have no choice but to accept breaks in the order of 20 working days in the course of a series of contracts with his employer ( Adeneler and Others , paragraphs 84 and 85, and order in Vassilakis and Others , paragraphs 107 and 108).

43. Furthermore, exercise of a fundamental right such as the right to bargain collectively may be subject to certain restrictions (see, to this effect, Viking Line , paragraph 44, and Case C-341/05 Laval un Partneri [2007] ECR I-11767, paragraph 91). In particular, while it is true that the right to bargain collectively enjoys in Germany the constitutional protection conferred, generally, by Article 9(3) of the German Basic Law upon the right to form associations to safeguard and promote working and economic conditions, the fact remains that, as provided in Article 28 of the Charter, that right must be exercised in accordance with European Union law.

91. Although the right to take collective action must therefore be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures, the exercise of that right may none the less be subject to certain restrictions. As is reaffirmed by Article 28 of the Charter of Fundamental Rights of the European Union, it is to be protected in accordance with Community law and national law and practices.

27 Inasmuch as Directive 2001/29 does not expressly address the various elements of the fair compensation system, the Member States enjoy broad discretion in determining who is to pay that compensation. The same is true of the form, detailed arrangements and possible level of such compensation (see, to that effect, judgment of 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, point 20 and the case-law cited).

34. Second, it is settled case-law that liability in tort, delict or quasi-delict can arise only on condition that a causal connection can be established between the damage and the event in which that damage originates (see, as regards the interpretation of the Brussels Convention, Case 21/76 Bier [1976] ECR 1735, ‘ Mines de potasse d’Alsace ’, paragraph 16, and Zuid-Chemie , paragraph 28 and the case-law cited).

16 LIABILITY IN TORT , DELICT OR QUASI-DELICT CAN ONLY ARISE PROVIDED THAT A CAUSAL CONNEXION CAN BE ESTABLISHED BETWEEN THE DAMAGE AND THE EVENT IN WHICH THAT DAMAGE ORIGINATES .

68. It should also be added that the fact that the Cantine were interveners in the proceedings relating to the security brought by DAI before the Italian courts did not prevent them from bringing parallel proceedings to establish liability before the Court of Justice under Article 235 EC. That provision specifically confers exclusive jurisdiction on the Community Courts to hear actions for compensation under the second paragraph of Article 288 EC brought against the Community (see, inter alia, Joined Cases 106/87 to 120/87 Asteris and Others [1988] ECR 5515, paragraph 15).

56. Lastly, as regards the complaint relating to the defective statement of reasons for the contested decision, it must be observed that, as the Commission asserts, the German Government relied on the applicability of the derogation laid down in Article 87(2)(c) EC for the first time in its application. In addition, that decision was adopted in a context well known to the German Government and belongs to a well-established line of decisions relating to the interpretation of that provision (Case C-156/98 Germany v Commission , cited above, paragraph 105).

105 It should, however, be pointed out that the contested decision was adopted in a context well known to the German Government and that it fits into a well-established line of decisions, particularly in relation to that Government. In those circumstances, such a decision may be reasoned in a summary manner (Case 73/74 Groupement des Fabricants de Papiers Peints de Belgique and Others v Commission [1975] ECR 1491, paragraph 31).

43 The object of the Brussels Convention is not to unify the procedural rules of the Contracting States, but to determine which court has jurisdiction in disputes concerning civil and commercial matters in intra-Community relations and to facilitate the enforcement of judgments (see Case C-365/88 Hagen [1990] ECR I-1845, paragraph 17, and Case C-68/93 Shevill and Others [1995] ECR I-415, paragraph 35).

56. In that regard, it is appropriate to bear in mind that, in order to ascertain whether a retirement pension falls within the scope of Article 119 of the Treaty and, with effect from 1 May 1999, within that of Article 141(1) and (2) EC, the only possible decisive criterion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say the criterion of employment based on the wording of the abovementioned provisions (see, to that effect, Case C-7/93 Beune [1994] ECR I-4471, paragraph 43; Case C-147/95 Evrenopoulos [1997] ECR I-2057, paragraph 19; Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 28; and Case C-351/00 Niemi [2002] ECR I-7007, paragraph 45).

45 Accordingly, for the purpose of determining whether a retirement pension falls within the scope of Article 119 of the Treaty, the Court has held that a decisive criterion is the existence of a link between the employment relationship and the retirement benefit, and has not regarded the structural elements of a system of pension benefits as playing a decisive role. The fact that the pension scheme laid down by Law 280/1966 is part of a harmonised system, so that the total pension received by an insured person reflects the work carried out during his entire career, irrespective of the type of work and sector of activity concerned, and the fact that that scheme was notified as a scheme falling within the scope of Regulation No 1408/71 are not sufficient in themselves to preclude the application of Article 119 of the Treaty, if the pension benefit is linked to the employment relationship and, as a result, it is paid by the State in its capacity as employer.

11 It must observed at the outset that, as the Court held at paragraph 32 of its judgment in Case C-361/98 Italy v Commission [2001] ECR I-385, the purpose of Regulation No 2408/92 is, amongst other things, to define the conditions for applying in the air transport sector the principle of the freedom to provide services which is enshrined, in particular, in Articles 59 and 61 (now Article 51 EC) of the EC Treaty, so that all matters of market access are dealt with in the same regulation.

11 It should further be added that, as the Court held in Joined Cases 273/85 and 107/86 Silver Seiko v Council [1988] ECR 5927, at paragraph 14, by taking into consideration the sales subsidiary' s prices it is possible to ensure that costs which manifestly form part of the selling price of a product where the sale is made by an internal sales department of the manufacturing organization are not left out of account where the same selling activity is carried out by a company which, despite being financially controlled by the manufacturer, is a legally distinct entity. The same is true as regards the inclusion of the costs incurred by SBK in the constructed normal value for one of Sharp' s models.

14 In view of those findings, it must be concluded that by taking into consideration the sales subsidiary' s prices it is possible to ensure that costs which manifestly form part of the selling price of a product where the sale is made by an internal sales department of the manufacturing organization are not left out of account where the same selling activity is carried out by a company which, despite being financially controlled by the manufacturer, is a legally distinct entity .

25 The Court has previously held, with respect to Article 9 of Sixth Directive 77/388, that the underlying logic of the provisions concerning the place where a service is supplied requires that goods and services are taxed as far as possible at the place of consumption (judgment of 3 September 2009, RCI Europe, C‑37/08, EU:C:2009:507, paragraph 39).

43. Moreover, an act adopted by a Community institution cannot be enforced against natural and legal persons in a Member State before they have the opportunity to make themselves acquainted with it by its proper publication in the Official Journal of the European Union ( Skoma-Lux , paragraph 37).

37. It is apparent from paragraph 15 of the judgment in Case C-98/78 Racke [1979] ECR 69, that an act adopted by a Community institution, such as the regulation at issue in the main proceedings, cannot be enforced against natural and legal persons in a Member State before they have the opportunity to make themselves acquainted with it by its proper publication in the Official Journal of the European Union .

33. It should be recalled, first, that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see the order of 4 February 2000 in Case C-17/98 Emesa Sugar [2000] ECR I‑665, paragraph 18; Case C-210/03 Swedish Match [2004] ECR I‑11893, paragraph 25; and Case 138/05 Stichting Zuid-Hollandse Milieufederatie [2006] ECR I-8339, paragraph 23).

52. Dans l’exercice de son pouvoir d’appréciation en la matière, il incombe à la Cour de fixer l’astreinte de sorte que celle-ci soit, d’une part, adaptée aux circonstances et, d’autre part, proportionnée au manquement constaté ainsi qu’à la capacité de paiement de l’État membre concerné (voir, notamment, arrêts Commission/Belgique, C‑533/11, EU:C:2013:659, point 68, et Commission/Suède, C‑243/13, EU:C:2014:2413, point 50).

68. It should be recalled that, in exercising its discretion, it is for the Court to set the penalty payment so that it is both appropriate to the circumstances and proportionate to the infringement established and the ability to pay of the Member State concerned (see Case C‑374/11 Commission v Ireland , paragraph 36 and the case-law cited).

42. The Court has also stated that, in those circumstances, the interpretation given to the provisions of European Union law concerning the internal market cannot be automatically applied by analogy to the interpretation of the Agreement, unless there are express provisions to that effect laid down by the Agreement itself (see Case C‑541/08 Fokus Invest [2010] ECR I‑0000, paragraph 28).

14. In that regard, it should be recalled that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of the Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (Case C‑299/99 Philips [2002] ECR I‑5475, paragraph 20).

20 The Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Joined Cases C-270/97 and C-271/97 Deutsche Post [2000] ECR I-929, paragraph 30).

10 IT IS HOWEVER APPROPRIATE TO EMPHASIZE THAT THE ABOVE-MENTIONED PROVISION IS LINKED TO THE ' ' NATURE ' ' OF THE TAX SYSTEM IN QUESTION SO THAT IT IS IMPOSSIBLE TO REQUIRE IN EACH CASE THAT THE PROTECTIVE EFFECT SHOULD BE SHOWN STATISTICALLY . IT IS SUFFICIENT FOR THE PURPOSES OF THE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 95 FOR IT TO BE SHOWN THAT A GIVEN TAX MECHANISM IS LIKELY , IN VIEW OF ITS INHERENT CHARACTERISTICS , TO BRING ABOUT THE PROTECTIVE EFFECT REFERRED TO BY THE TREATY . WITHOUT THEREFORE DISREGARDING THE IMPORTANCE OF THE CRITERIA WHICH MAY BE DEDUCED FROM STATISTICS FROM WHICH THE EFFECTS OF A GIVEN TAX SYSTEM MAY BE MEASURED , IT IS IMPOSSIBLE TO REQUIRE THE COMMISSION TO SUPPLY STATISTICAL DATA ON THE ACTUAL FOUNDATION OF THE PROTECTIVE EFFECT OF THE TAX SYSTEM COMPLAINED OF .

35. In addition, the Court has stated that Article 5(2) of Directive 89/104 also applies in relation to goods and services identical with or similar to those in respect of which the mark was registered (see, to that effect, Case C‑292/00 Davidoff [2003] ECR I‑389, paragraph 30; Adidas-Salomon and Adidas Benelux , paragraphs 18 to 22; and adidas and adidas Benelux , paragraph 37).

18. In that regard, it should be noted that where a Member State exercises the option provided by Article 5(2) of the Directive, it must grant to the proprietors of marks with a reputation a form of protection in accordance with that provision.

23 In order to attain that objective the provisions offer a choice to the worker, who is in the best position to know what are the possibilities of finding new employment. He may apply to the unemployment benefit scheme in the State in which he was last employed, or claim benefit in the State where he resides. In the case of a wholly unemployed worker who elects to be governed by the legislation of the State where he resides, that choice is made essentially ° indeed exclusively ° by the worker' s making himself available to the employment office of the State from which he is claiming the benefits. The worker may not, however, either aggregate the unemployment benefit from both States or, if he has made himself available only to the employment office in the territory of the Member State where he resides, claim unemployment benefits from the State in which he was last employed (see the judgment in Case 227/81 Aubin v Unedic and Assedic [1982] ECR 1991, at paragraph 19).

78. In this connection, it must be observed that, in the context of the review conducted by the European Union judicature of complex economic assessments made by the Commission in the field of State aid, it is not for that judicature to substitute its own economic assessment for that of the Commission (see, to that effect, Case C‑290/07 P Commission v Scott [2010] ECR I‑7763, paragraphs 64 and 66, and Frucona Košice v Commission , paragraph 75).

64. As regards the merits of those grounds of appeal, it should be noted that although, in the area of State aid, the Commission enjoys a broad discretion the exercise of which involves economic assessments which must be made in a European Union context, that does not imply that the European Union judicature must refrain from reviewing the Commission’s interpretation of economic data.

25 According to the case-law of the Court of Justice, that obligation to refer is based on cooperation, with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice (see, in particular, Case 283/81 CILFIT and Lanificio di Gavardo v Italian Ministry of Health [1982] ECR 3415, paragraph 7). It is also clear from the case-law that the particular purpose of the third paragraph of Article 177 is to prevent a body of national case-law that is not in accord with the rules of Community law from coming into existence in any Member State (see, in particular, Case 107/76 Hoffman-La Roche v Centrafarm [1977] ECR 957, paragraph 5, and Joined Cases 35/82 and 36/82 Morson and Jhanjan v State of the Netherlands [1982] ECR 3723, paragraph 8).

32. That also applies in an action for failure to fulfil obligations based on the second subparagraph of Article 88(2) EC ( Commission v France , paragraph 20, and Commission v Spain , paragraph 42).

42. That finding also applies in an action for failure to fulfil obligations brought under the second subparagraph of Article 88(2) EC.

54. The guidance given by the Court of Justice in Haderer is, moreover, to that effect. In paragraphs 33 to 35 of that judgment, the Court states, in essence, that it appeared that Mr Haderer had made himself available as a teacher to another entity, which paid him as a provider of services to the education system administered by that body, so that a person in the position of Mr Haderer could not be regarded as having acted ‘privately’, but that this was for the referring court to verify, taking account of all the circumstances of the case.

24 The Court has held that when, during the implementation of a Commission decision on State aid, a Member State encounters unforeseen and unforeseeable difficulties or becomes aware of consequences unforeseen by the Commission, it must submit those problems to the Commission for its assessment, proposing appropriate amendments to the decision in question. In such a case, under the rule imposing on Member States and Community institutions reciprocal duties of genuine cooperation which underlies in particular Article 10 EC, the Commission and the Member State must work together in good faith with a view to overcoming the difficulties whilst fully observing the provisions of the Treaty and in particular those on aid (Commission v Italy, cited above, paragraph 17; Commission v France, cited above, paragraph 24, and Case C-378/98 Commission v Belgium [2001] ECR I-5107, paragraph 31).

17 The Court has also held that a Member State which, in giving effect to a Commission decision on State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences overlooked by the Commission, must submit those problems to the Commission for consideration, together with proposals for suitable amendments to the decision in question. In such cases, the Commission and the Member State must, by virtue of the rule imposing on the Member States and the Community institutions a duty of genuine cooperation which underlies, in particular, Article 5 of the Treaty, work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on aid (see the above judgment in Case C-349/93 Commission v Italy, paragraph 13, and the case-law cited therein).

36. For the reasons given in paragraphs 31 to 35 above, the effectiveness of EU law would be impaired and the effectiveness of Article 267 TFEU diminished if, as a result of the fact that an interlocutory procedure for review of constitutionality is pending, the national court were precluded from referring questions to the Court for a preliminary ruling and immediately applying EU law in a manner consistent with the Court’s decision or case-law (see, to that effect, judgment in Simmenthal , 106/77, EU:C:1978:49, paragraph 20).

44. Nevertheless, as is apparent from the provisions of Clause 5(1) of the Framework Agreement, national legislation which allows a succession of fixed-term contracts without requiring objective grounds or laying down a maximum total duration of successive fixed-term contracts or limiting the number of renewals thereof can be regarded as complying with the Framework Agreement if the domestic legal order of the Member State concerned contains another effective equivalent measure to prevent and, where relevant, penalise the misuse of successive fixed-term contracts (see, to that effect, Adeneler and Others , paragraph 105; Marrosu and Sardino , paragraph 49; and Vassallo , paragraph 34).

105. Accordingly, the answer to the fourth question must be that, in circumstances such as those of the main proceedings, the Framework Agreement is to be interpreted as meaning that, in so far as domestic law of the Member State concerned does not include, in the sector under consideration, any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts, the Framework Agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that, in fact, have been intended to cover ‘fixed and permanent needs’ of the employer and must therefore be regarded as constituting an abuse. Question 1

4 IT IS RIGHT TO RECALL THAT THE MAIN ACTION HAS ALREADY GIVEN RISE TO A REFERENCE FOR A PRELIMINARY RULING MADE BY THE SAME FINANZGERICHT , WHICH WAS THE SUBJECT OF CASE 139/77 IN WHICH THE COURT GAVE JUDGMENT ON 13 JUNE 1978 (( 1978 ) ECR 1317 ). IN THAT JUDGMENT THE COURT , AFTER EXAMINING ( PAGES 1329 TO 1331 ) THE ORIGIN AND SUBSTANCE OF THE COMMUNITY RULES AND THE NATIONAL LAW IN QUESTION ANSWERED THE FOLLOWING QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING : ' ' 1 . UNDER COMMUNITY LAW DOES THE EXPRESSION ' AGRICULTURAL PRODUCERS ' IN ARTICLE 1 ( 1 ) AND ( 3 ) OF REGULATION ( EEC ) NO 2464/69 INCLUDE INDUSTRIAL LIVESTOCK BREEDERS AND KEEPERS WITHIN THE MEANING OF GERMAN TAX LAW? 2 . IF THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE : ARE ARTICLE 39 AND THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY AND ARTICLE 1 OF REGULATION ( EEC ) NO 2464/69 OF THE COUNCIL OR ANY OTHER PROVISIONS OF COMMUNITY LAW TO BE INTERPRETED AS MEANING THAT THEY FORBID THE FEDERAL REPUBLIC OF GERMANY , AS A MEMBER STATE OF THE EEC TO WHICH REGULATION ( EEC ) NO 2464/69 WAS ADDRESSED , IN THE EVENT OF THE GRANT OF DIRECT AID BY WAY OF COMPENSATION FOR THE REVALUATION OF THE GERMAN MARK IN RESPECT OF AGRICULTURAL PRODUCTS SUBJECT TO AN ORGANIZATION OF THE MARKET , TO EXCLUDE SPECIFIC CLASSES OF AGRICULTURAL PRODUCERS - IN THIS CASE , INDUSTRIAL LIVESTOCK BREEDERS AND KEEPERS WITHIN THE MEANING OF GERMAN TAX LAW - FROM THE GRANT OF AID? ' '

56. The Court has already held in similar circumstances that if the pre‑litigation procedure has attained its objective of protecting the rights of the Member State in question, that Member State, which did not inform the Commission during the pre-litigation procedure that the directive should be regarded as having already been implemented in its domestic law, cannot complain that the Commission has extended or altered the subject-matter of the action as defined by the pre-litigation procedure. According to the Court, the Commission may, after alleging that a Member State has failed to transpose a directive at all, specify in its reply that the implementation pleaded for the first time by the Member State concerned in its defence is in any event incorrect or incomplete so far as certain provisions of the directive are concerned, as such a complaint is necessarily included in the complaint alleging a complete failure to transpose and is subsidiary to that complaint (Case C‑456/03 Commission v Italy [2005] ECR I‑5335, paragraphs 23 to 42, and, in particular, paragraph 40).

40. That is the case where, as here, the Commission, after alleging that a Member State has failed to transpose a directive at all, specifies in its reply that the transposition pleaded for the first time by the Member State concerned in its defence is in any event incorrect or incomplete so far as certain provisions of the directive are concerned. Such a complaint is necessarily included in the complaint alleging a complete failure to transpose and is subsidiary to that complaint (see, to this effect, Commission v Portugal , cited above, paragraph 55).

27. Compte tenu de cet objectif, il y a lieu de rappeler que le caractère commercial d’une activité n’exclut pas, dans le contexte de l’article 132, paragraphe 1, sous i), de la directive TVA, qu’elle présente le caractère d’une activité d’intérêt général (voir arrêts du 3 avril 2003, Hoffmann, C‑144/00, Rec. p. I‑2921, point 38, ainsi que du 26 mai 2005, Kingscrest Associates et Montecello, C‑498/03, Rec. p. I‑4427, point 31).

99. However, where a Member State has chosen not to tax resident investment funds in receipt of nationally-sourced dividends, it cannot rely on the argument that there is a need to ensure a balanced allocation between the Member States of the power to tax in order to justify the taxation of non-resident investment funds in receipt of such income (see, to that effect, Santander Asset Management SGIIC and Others , paragraph 48 and case-law cited).

48. However, where a Member State has chosen not to tax resident UCITS in receipt of nationally‑sourced dividends, it cannot rely on the argument that there is a need to ensure a balanced allocation between the Member States of the power to tax in order to justify the taxation of non‑resident UCITS in receipt of such income (see Amurta , paragraph 59; Aberdeen Property Fininvest Alpha , paragraph 67; and Commission v Germany , paragraph 78).

34. As is apparent from paragraph 31 of the judgment in Commission v Germany , a fee charged pursuant to that provision cannot take the form of a standard amount, with the result that the overall amount will be apt to vary from case to case according to the actual costs incurred by the competent authority in respect of veterinary inspections and controls in particular establishments.

22. À cet égard, l’obligation d’établir des plans de gestion des déchets constitue une obligation de résultat à laquelle il ne saurait être satisfait par des mesures fixant un cadre réglementaire de nature à réaliser cet objectif (voir, en ce sens, arrêt Commission/France, C-292/99, précité, point 39, et voir arrêt du 4 octobre 2007, Commission/Finlande, C‑523/06, point 13).

39 Plainly, the duty to draw up waste management plans, in accordance with Article 7(1) of Directive 75/442, is an obligation as to the result to be achieved. It cannot be satisfied by steps preparing for or contemplating the drafting of such plans or by the creation of an appropriate regulatory framework for attaining that objective. However, as the French Government itself acknowledges, when the two-month period laid down in the reasoned opinion expired, waste management plans had not in fact been adopted for the whole of the territory of the French Republic.

54. The Court has repeatedly held that the ‘standstill’ clause in Article 41(1) of the Additional Protocol is not, in itself, capable of conferring on Turkish nationals – on the basis of European Union legislation alone – a right of establishment or, as a corollary, a right of residence, or indeed a right of freedom to provide services or to enter the territory of a Member State (see, to that effect, Savas , paragraphs 64 and 71, third indent; Abatay and Others , paragraph 62; Tum and Dari , paragraph 52; and Soysal and Savatli , paragraph 47).

37. À cet égard, il est de jurisprudence constante que, dans le cadre d’une procédure en manquement au titre de l’article 258 TFUE, il incombe à la Commission d’établir l’existence du manquement allégué et d’apporter à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans que la Commission puisse se fonder sur une présomption quelconque (arrêt Commission/Royaume‑Uni, C‑530/11, EU:C:2014:67, point 60 ainsi que jurisprudence citée).

60. As regards the argument raised by the Commission that the costs protection regime also does not comply with European Union law in so far as protective costs orders involve a ‘reciprocal cap on costs’ enabling the defendant public authority to limit its financial liability if it loses the case, which indirectly reduces the protection conferred by a fee agreement, it is to be recalled that in proceedings brought under Article 258 TFEU for failure to fulfil obligations it is for the Commission to prove the allegation that an obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court the information required to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (see, inter alia, the judgment of 22 November 2012 in Case C‑600/10 Commission v Germany , paragraph 13 and the case-law cited).

94 Likewise, the interpretation of Article 4 of the Charter in the present judgment is not invalidated by the judgment of 10 December 2013, Abdullahi (C‑394/12, EU:C:2013:813, paragraph 60), in which the Court held, with regard to the Dublin II Regulation, in essence, that, in circumstances such as those of the case giving rise to that judgment, the only way in which an asylum seeker could call his transfer into question was by pleading systemic flaws in the Member State responsible. Apart from the fact that the Court has held, as recalled in paragraph 62 of the present judgment, that, with regard to the rights enjoyed by an asylum seeker, the Dublin III Regulation differs in essential respects from the Dublin II Regulation, it must be recalled that that judgment was delivered in a case involving a national who had not claimed, before the Court of Justice, any particular circumstances indicating that his transfer would, in itself, be contrary to Article 4 of the Charter. The Court thereby merely recalled its previous judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), concerning the impossibility of proceeding with any transfer of asylum seekers to a Member State experiencing systemic flaws in the asylum procedure or the conditions for their reception.

14 It should be noted at the outset that the Court has held that the principle of fiscal neutrality prevents there being any general distinction in the levying of VAT as between lawful and unlawful transactions. However, that is not true in the case of the supply of products such as narcotic drugs which have special characteristics, inasmuch as, because of their very nature, they are subject to a total prohibition on marketing in all the Member States, with the exception of strictly controlled economic channels for use for medical and scientific purposes. In a specific situation of that kind, where all competition between a lawful economic sector and an unlawful sector is precluded, the fact that no liability to VAT arises cannot affect the principle of fiscal neutrality (see inter alia Happy Family, paragraph 20, and Case 269/86 Mol v Inspecteur der Invoerrechten en Accijnzen [1988] ECR 3627, paragraph 18).

18 It must be acknowledged that the principle of fiscal neutrality does in fact preclude, as far as the levying of value-added tax is concerned, a generalized differentiation between lawful and unlawful transactions . However, that is not true in the case of the supply of products, such as narcotic drugs, which have special characteristics inasmuch as, because of their very nature, they are subject to a total prohibition on their being put into circulation in all the Member States, with the exception of strictly controlled economic channels for use for medical and scientific purposes . In a specific situation of that kind where all competition between a lawful economic sector and an unlawful sector is precluded, the fact that no liability to value-added tax arises cannot affect the principle of fiscal neutrality .

35. As regards the second element of the concept of ‘travelling time’, within the meaning of point (1) of Article 2 of Directive 2003/88, according to which the worker must be at the employer’s disposal during that time, it should be noted that the decisive factor is that the worker is required to be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need (see, to that effect, judgment in Dellas and Others , C‑14/04, EU:C:2005:728, paragraph 48, and orders in Vorel , C‑437/05, EU:C:2007:23, paragraph 28, and Grigore , C‑258/10, EU:C:2011:122, paragraph 63).

18 The Landesarbeitsgericht considered that, under the case-law of the Bundesarbeitsgericht (Federal Labour Court), Deutsche Post's appeal was unfounded and that Mrs Sievers and Mrs Schrage were entitled to the pensions which they claimed. It observed, however, that under the case-law of the Court (Barber, cited above, Case C-109/91 Ten Oever [1993] ECR I-4879 and Case C-128/93 Fisscher [1994] ECR I-4583), the direct effect of Article 119 of the Treaty could in principle be relied on to claim equal treatment for men and women in relation to occupational pensions only for periods of employment subsequent to 17 May 1990. Moreover, it was clear from the Protocol that benefits under occupational social security schemes were not to be considered as remuneration if and in so far as they were attributable to periods of employment prior to 17 May 1990.

44 In those circumstances, overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many contracted-out pension schemes . It is appropriate, however, to provide for an exception in favour of individuals who have taken action in good time in order to safeguard their rights . Finally, it must be pointed out that no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment .

37 It is therefore necessary to answer the questions submitted since it is for the national court to determine both the need for a preliminary ruling in order to enable it to give judgment and the relevance of the questions which it submits to the Court (see, to that effect, Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 10; Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraph 15; Case C-341/94 Allain [1996] ECR I-4631, paragraph 13, and Skanavi and Chryssanthakopoulos, paragraph 18).

44 Accordingly, the concept of intervention ‘through State resources’, within the meaning of that provision, is intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58; of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 26; and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 20).

26. With regard to the first of those conditions, the settled case-law of the Court shows that only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Article 107(1) TFEU. The distinction made in that provision between aid granted by a Member State and aid granted through State resources does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 58 and the case-law cited). Thus, the prohibition in Article 107(1) TFEU may also cover, in principle, aid granted by public or private bodies established or appointed by the State to administer aid (see, to that effect, Pearle and Others , paragraph 34 and the case-law cited).

76. However, the need to alter the packaging or the labelling of imported products prevents such requirements from being selling arrangements within the meaning of the judgment in Keck and Mithouard (Case C-33/97 Colim [1999] ECR I-3175, paragraph 37).

38. Under the principle of cooperation laid down in Article 10 EC, it is for the Member States to ensure judicial protection of an individual’s rights under Community law (see, to that effect, Case 33/76 Rewe , [1976] ECR 1989, paragraph 5; Case 45/76 Comet [1976] ECR 2043, paragraph 12; Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 and 22; Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 19; and Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12).

22ACCORDINGLY ANY PROVISION OF A NATIONAL LEGAL SYSTEM AND ANY LEGISLATIVE , ADMINISTRATIVE OR JUDICIAL PRACTICE WHICH MIGHT IMPAIR THE EFFECTIVENESS OF COMMUNITY LAW BY WITHHOLDING FROM THE NATIONAL COURT HAVING JURISDICTION TO APPLY SUCH LAW THE POWER TO DO EVERYTHING NECESSARY AT THE MOMENT OF ITS APPLICATION TO SET ASIDE NATIONAL LEGISLATIVE PROVISIONS WHICH MIGHT PREVENT COMMUNITY RULES FROM HAVING FULL FORCE AND EFFECT ARE INCOMPATIBLE WITH THOSE REQUIREMENTS WHICH ARE THE VERY ESSENCE OF COMMUNITY LAW .

70 It must nevertheless be borne in mind that Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights enshrined by the Charter as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, in accordance with the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, in particular, judgment of 31 January 2013, McDonagh , C‑12/11, EU:C:2013:43, paragraph 61).

35. In that regard, it should first be pointed out that a social objective pursued through granting leave to enter as students or as au pairs, together with the related right to work, does not, of itself, take away the lawful character of the activities performed by the persons concerned and, consequently, does not prevent them from being regarded as ‘duly registered as belonging to the labour force’ of the host Member State. The Court held in paragraph 51 of Birden that the concept of being duly registered as belonging to the labour force cannot be interpreted as applying to the labour market in general as opposed to a specific market with a social objective supported by the public authorities.

51 Consequently, the concept of `being duly registered as belonging to the labour force' must be regarded as applying to all workers who have complied with the requirements laid down by law and regulation in the Member State concerned and are thus entitled to pursue an occupation in its territory. By contrast, contrary to the assertions of the German Government and the Commission, it cannot be interpreted as applying to the labour market in general as opposed to a specific market with a social objective supported by the public authorities.

20 Furthermore, the more distinctive the earlier mark, the greater will be the likelihood of confusion (SABEL, paragraph 24), and therefore marks with a highly distinctive character, either per se or because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (see Canon, paragraph 18).

31. In that regard, it should be borne in mind that, according to settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, Case C‑142/06 Olicom [2007] ECR I‑6675, paragraph 16, and Case C‑370/08 Data I/O [2010] ECR I‑0000, paragraph 29).

29. It is appropriate from the outset to recall that, in accordance with the Court’s settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, Case C‑142/06 Olicom [2007] ECR I‑6675, paragraph 16; and Case C‑376/07 Kamino International Logistics [2009] ECR I‑1167, paragraph 31).

28. The Court has already stated that irregularities involving the adoption of administrative measures within the meaning of Article 4 of Regulation No 2988/95, such as those at issue in the main proceedings, must be considered to be time-barred after four years from the date on which they were committed, taking into account any interruptions in the limitation period provided for in the third subparagraph of Article 3(1) of that regulation and in compliance with the maximum limit laid down in the fourth subparagraph of Article 3(1) thereof (judgment in Cruz & Companhia , C‑341/13, EU:C:2014:2230, paragraph 64).

40. Although it is apparent from recital 6 of the preamble to Directive 2008/95 that the Member States remain free to fix the provisions of procedure concerning, inter alia, the registration of trade marks (see, to that effect, Case C-418/02 Praktiker Bau- und Heimwerkermärkte [2005] ECR I-5873, paragraph 30, and Case C-246/05 Häupl [2007] ECR I-4673, paragraph 26), the fact remains that the Court has held that determination of the nature and content of the goods and services eligible for protection by a registered trade mark is subject, not to the provisions on registration procedures, but to the substantive conditions for acquiring the right conferred by the trade mark ( Praktiker Bau- und Heimwerkermärkte , paragraph 31).

31. However, determination of the nature and content of the service eligible for protection by a registered trade mark is subject, not to the provisions on registration procedures, but to the substantive conditions for acquiring the right conferred by the trade mark.

36. It follows that, under Article 5 of Directive 95/46, Member States also cannot introduce principles relating to the lawfulness of the processing of personal data other than those listed in Article 7 thereof, nor can they amend, by additional requirements, the scope of the six principles provided for in Article 7.

29. In the absence of a definition in the EC Treaty of ‘movement of capital’ for the purposes of Article 56(1) EC, the Court has previously recognised the nomenclature annexed to Directive 88/361 as having indicative value, even though the latter was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (subsequently, Articles 69 and 70(1) of the EC Treaty, repealed by the Treaty of Amsterdam), subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see, in particular, Case C‑513/03 van Hilten‑van der Heijden [2006] ECR I‑1957, paragraph 39; Case C‑452/04 Fidi um Finanz [2006] ECR I‑9521, paragraph 41; Federconsumatori and Others , paragraph 20; and Case C‑256/06 Jäger [2008] ECR I‑0000, paragraph 24).

39. In that regard, it must be observed that the Treaty does not define the terms ‘movement of capital’ and ‘payments’. However, it is settled case‑law that, inasmuch as Article 73b of the Treaty substantially reproduces the content of Article 1 of Directive 88/361, and even if the latter was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty were replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature of capital movements annexed thereto retains the same indicative value, for the purposes of defining the term ‘movement of capital’, as it did before their entry into force, subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see to that effect, among others, Case C‑222/97 Trummer and Mayer [1999] ECR I‑1661, paragraph 21, and Joined Cases C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99 Reisch and Others [2002] ECR I‑2157, paragraph 30).

61. A breach of the principle of proportionality presupposes that the Community measure imposes on those to whom it is addressed an obligation which goes further than is appropriate and necessary in order to attain the aim pursued by that measure.

33. It is also apparent from the Court’s case-law that the special rules introduced by the provisions of the Brussels Convention on jurisdiction over consumer contracts serve to ensure adequate protection for the consumer, as the party deemed to be economically weaker and less experienced in legal matters than the other, commercial, party to the contract (see, inter alia, Gruber , paragraph 34, and Engler , paragraph 39). That role implies that the application of the rules of special jurisdiction laid down to that end by the Brussels Convention should not be extended to persons for whom that protection is not justified (see, to that effect, Shearson Lehman Hutton , paragraph 19).

34. Second, the Court has repeatedly held that the special rules introduced by the provisions of Title II, Section 4, of the Brussels Convention, which derogate from the general rule laid down in the first paragraph of Article 2, and from the rules of special jurisdiction for contracts in general enshrined in Article 5(1) of the Convention, serve to ensure adequate protection for the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other, commercial, party to the contract, who must not therefore be discouraged from suing by being compelled to bring his action before the courts in the Contracting State in which the other party to the contract is domiciled (see in particular Shearson Lehman Hutton , paragraph 18, and Gabriel , paragraph 39).

23. Under the Sixth Directive, the scope of VAT is very wide in that Article 2 thereof, which concerns taxable transactions, refers not only to imports of goods but also to the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such (see, in particular, Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 49; Case C‑401/05 VDP Dental Laboratory [2006] ECR I‑12121, paragraph 22; and Case C-88/09 Graphic Procédé [2010] ECR I‑0000, paragraph 15). Article 13 of the Sixth Directive nevertheless exempts certain activities from VAT.

31. Thus, the Court has acknowledged that the shareholder who subscribes to the statutes of a company is deemed to give his consent to a jurisdiction clause therein, on the ground that subscribing creates a relationship between the shareholder and the company and between the shareholders themselves which must be regarded as contractual (see to that effect, Powell Duffryn , paragraphs 16 to 19).

18 It is immaterial that the shareholder against whom the clause conferring jurisdiction is invoked opposed the adoption of the clause or that he became a shareholder after the clause was adopted.

43 Since the interpretation given by the Court in respect of the provisions of that convention is also valid for those of Regulation No 44/2001 whenever the provisions of those instruments may be regarded as equivalent (judgment in CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 60), it must be found that such is the case as regards Article 6(2) of the Brussels Convention and Article 6(2) of Regulation No 44/2001.

47. Admittedly, that criterion cannot be regarded as exclusive, inasmuch as pensions paid under statutory social security schemes may reflect, wholly or in part, pay in respect of work ( Beune , paragraph 44; Evrenopoulos , paragraph 20; Griesmar , paragraph 29; Niemi , paragraph 46; and Schönheit and Becker , paragraph 57).

57. Admittedly, the employment criterion cannot be regarded as exclusive, since pensions paid by statutory social security schemes may reflect, wholly or in part, pay in respect of work (Beune , paragraph 44, Evrenopoulos , paragraph 20, Griesmar , paragraph 29, and Niemi , paragraph 46). Such pensions do not constitute "pay" for the purposes of Article 119 of the Treaty or Article 141 EC (see, to that effect, Beune , paragraphs 24 and 44, Griesmar , paragraph 27, and Niemi , paragraph 39).

55. The Court has already held that the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question, and is normally agreed upon between the provider and the recipient of the service (see Case 263/86 Humbel and Edel [1988] ECR 5365, paragraph 17, and Case C-109/92 Wirth [1993] ECR I-6447, paragraph 15).

44. However, that incorrect reference to Article 133 EC as a second legal basis for that directive does not of itself mean that the directive is invalid ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 98). Such an error in the citations of a Community act is no more than a purely formal defect, unless it gave rise to irregularity in the procedure applicable to the adoption of that act (see, to that effect, Case 165/87 Commission v Council [1988] ECR 5545, paragraph 19, and Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council [2004] ECR I-0000, paragraph 44). The Court went on to hold, in paragraph 111 of British American Tobacco (Investments) and Imperial Tobacco , that recourse to the twofold legal basis of Articles 95 EC and 133 EC did not give rise to irregularity in the procedure for adopting the directive and that the directive was not invalid on that account.

44. In those circumstances, there is no need to rule on whether Article 137(2) EC also provides an appropriate legal basis for the measures envisaged by the contested directive as regards self-employed drivers (see also Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 98, and, a contrario , Case C-300/89 Commission v Council ( ‘Titanium dioxide’ ) [1991] ECR I‑2867, paragraphs 18 to 21).

76. As the Court held in Engelmann , paragraph 30, the requirement of a particular legal form for operators of games of chance may, by virtue of the obligations binding certain kinds of company with respect in particular to their internal organisation, the keeping of their accounts, the scrutiny to which they may be subject and their relations with third parties, be justified by the objective of preventing money laundering and fraud, relied on by the Austrian Government in the present case.

67. In paragraph 184 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 83 to 111).

87 It was therefore entitled to conclude, in paragraph 249 of the contested judgment, that observance of the rights of the defence requires that each undertaking or association of undertakings concerned be given the opportunity to be heard as to the objections raised against each of them which the Commission proposes to deal with in the final decision finding infringement of the competition rules. In so doing, it did not lay down any limitation by the provisions of Regulation No 17 and Regulation No 99/63 of the fundamental principle of observance of the rights of the defence but in fact stated its content in relation to competition law.

14 Those provisions are sufficiently precise and unconditional to enable the national court to determine whether or not a person should be regarded as a person intended to benefit under the directive. A national court need only verify whether the person concerned is an employed person under national law and whether he is excluded from the scope of the directive in accordance with Article 1(2) and Annex 1 (as to the necessary conditions for such exclusion, see the judgments in Case 22/87 Commission v Italy, cited above, paragraphs 18 to 23, and Case C-53/88 Commission v Greece [1990] ECR I-3917, paragraphs 11 to 26), and then ascertain whether one of the situations of insolvency provided for in Article 2 of the directive exists.

65. In relation to the application of Article 85 of the EEC Treaty (Article 85 of the EC Treaty, now Article 81 EC), the Court has held that an agreement between producer and distributor which might tend to restore the national divisions in trade between Member States might be such as to frustrate the objective of the Treaty to achieve the integration of national markets through the establishment of a single market. Thus on a number of occasions the Court has held agreements aimed at partitioning national markets according to national borders or making the interpenetration of national markets more difficult, in particular those aimed at preventing or restricting parallel exports, to be agreements whose object is to restrict competition within the meaning of that Treaty article (see, for example, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraphs 23 to 27; Case C‑306/96 Javico [1998] ECR I‑1983, paragraphs 13 and 14; and Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraphs 67 to 69).

25 THEREFORE , THE PURPOSE OF THE AGREEMENT , REGARD BEING HAD TO ITS TERMS , THE LEGAL AND ECONOMIC CONTEXT IN WHICH IT WAS CONCLUDED AND THE CONDUCT OF THE PARTIES , IS APPRECIABLY TO RESTRICT COMPETITION WITHIN THE COMMON MARKET , NOTWITHSTANDING THE FACT THAT IT ALSO PURSUES THE OBJECTIVE OF PROTECTING PUBLIC HEALTH AND REDUCING THE COST OF CONFORMITY CHECKS . THAT FINDING IS NOT INVALIDATED BY THE FACT THAT IT HAS NOT BEEN ESTABLISHED THAT IT WAS THE INTENTION OF ALL THE PARTIES TO THE AGREEMENT TO RESTRICT COMPETITION .

24 It follows that, as the Court has already held, the term ‘packaging’ must be given a broad interpretation (see, to that effect, judgment of 29 April 2004, Plato Plastik Robert Frank, C‑341/01, EU:C:2004:254, paragraphs 56 and 57).

19. In that regard, the requirement for family members of a Union citizen who are not nationals of a Member State to reside with that citizen in the host Member State for the period concerned implies that those family members necessarily and concurrently have a right of residence under Article 7(2) of Directive 2004/38 as family members accompanying or joining that citizen, in such a way that only the periods of residence of those family members which satisfy the condition laid down in Article 7(2) of that directive may be taken into consideration (see Alarape and Tijani , paragraphs 36 and 37).

37. It follows that, for the purposes of acquisition of a right of permanent residence by family members of a Union citizen who are not nationals of a Member State under Article 16(2) of Directive 2004/38, only the periods of residence of those family members which satisfy the condition laid down in Article 7(2) of that directive may be taken into consideration.

17 Consequently, the aim of the directives is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones (see, to that effect, Case C-44/96 Mannesmann Anlagenbau Austria and Others v Strohal Rotationsdruck [1998] ECR I-73, paragraph 33, and BFI Holding, cited above, paragraphs 42 and 43).

84 In that regard, it must be stated that compliance with Article 4 of the Charter, concerning the prohibition of inhuman or degrading treatment or punishment, is binding, as is stated in Article 51(1) of the Charter, on the Member States and, consequently, on their courts, where they are implementing EU law, which is the case when the issuing judicial authority and the executing judicial authority are applying the provisions of national law adopted to transpose the Framework Decision (see, by analogy, judgments in Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 72, and Peftiev and Others, C‑314/13, EU:C:2014:1645, paragraph 24).

24. It should be borne in mind that, when deciding on a request for release of frozen funds pursuant to Article 3(1)(b) of Regulation No 765/2006, the competent national authority implements EU law. It follows that that authority is required to observe the Charter of Fundamental Rights of the European Union (‘the Charter’), as provided for in Article 51(1) thereof.

62. On the other hand, in relation specifically to Article 5(3) of Regulation No 44/2001, the Court has held that at the stage at which jurisdiction is determined, the court seised does not examine either the admissibility or the substance of the application in the light of national law, but identifies only the points of connection with the State in which that court is sitting that support its claim to jurisdiction under that provision (judgment in Folien Fischer and Fofitec , C‑133/11, EU:C:2012:664, paragraph 50). Thus, the court seised may regard as established, solely for the purpose of ascertaining whether it has jurisdiction under that provision, the applicant’s assertions as regards the conditions for liability in tort, delict or quasi-delict (judgment in Hi Hotel HCF , C‑387/12, EU:C:2014:215, paragraph 20).

20 In that regard, it should be recalled that, in accordance with the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, judgment of 6 July 2017, Air Berlin, C‑290/16, EU:C:2017:523, paragraph 22 and the case-law cited) and, in the circumstances of this case, the history of that legislation (judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 30).

22 It should be noted that, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see judgment of 19 July 2012, ebookers.com Deutschland, C‑112/11, EU:C:2012:487, paragraph 12 and the case-law cited).

84. In addition, the Court has repeatedly held that the exception in the first paragraph of Article 45 EC must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority ( Reyners , paragraph 45; Case C‑42/92 Thijssen [1993] ECR I‑4047, paragraph 8; Commission v Spain , paragraph 35; Servizi Ausiliari Dottori Commercialisti , paragraph 46; Commission v Germany , paragraph 38; and Commission v Portugal , paragraph 36).

56. An association such as Forum 187 which is responsible for protecting the collective interests of coordination centres established in Belgium is, as a rule, entitled to bring an action for annulment against a final decision of the Commission in matters of State aid only if the undertakings which it represents or some of those undertakings themselves have locus standi (Case C-6/92 Federmineraria and Others v Commission [1993] ECR I‑6357, paragraphs 15 and 16) or if it can prove an interest of its own (Case C-313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraphs 29 and 30).

15 In these circumstances, the Decision cannot be considered to affect operators whose number or identity was fixed and ascertainable at the time of its adoption.

59 In that regard, the Court has already held that Article 7(1)(c) of Regulation No 207/2009 pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the categories of goods or services in respect of which registration is applied for may be freely used by all, including as collective marks or as part of complex or graphic marks. That provision therefore prevents such signs or such indications from being reserved to one undertaking alone because they have been registered as individual trade marks (see, to that effect, judgments of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 25, and of 19 April 2007, OHIM v Celltech, C‑273/05 P, EU:C:2007:224, paragraph 75 and the case-law cited).

158 As regards, more particularly, the argument put forward by the appellants that the General Court did not carry out an in-depth review of the gravity rate applied when setting the basic amount of the fine, or of the refusal to grant mitigating circumstances in respect of Timab’s competitive behaviour, it suffices to note that, in paragraphs 149 to 164 of the judgment under appeal, the General Court gave a detailed account of the factors which it took into account in assessing the gravity of the infringement. In the same way, it is clear from paragraphs 165 to 168 of the judgment under appeal that the General Court carefully considered the question of mitigating circumstances. Accordingly, that argument must be held to be unfounded. The mere fact that the General Court confirmed, in that regard, in the exercise of its unlimited jurisdiction, a number of factors from the assessment made by the Commission in the contested decision cannot call that conclusion into question (see, judgment of 8 May 2013, Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 99 and the case-law cited).

99. Secondly, as regards the complaint alleging that the General Court failed to explain, using its own reasoning, what criteria brought the starting point to EUR 55 million instead of the minimum EUR 20 million, it is sufficient to state that, in paragraph 143 of the judgment under appeal, the General Court gave a detailed explanation of the factors which it took into account to assess the gravity of the infringement. That complaint is therefore manifestly unfounded. The mere fact that the General Court confirmed, in that regard, in the exercise of its unlimited jurisdiction, a number of factors from the assessment made by the Commission in the contested decision cannot call that conclusion into question (see, to that effect, Case C‑89/11 P E.ON Energie v Commission [2012] ECR I‑0000, paragraph 133).

52. Having regard to the foregoing, the classification under subheading 1905 90 20 of the CN of foodstuffs prepared from rice flour, salt and water in the form of dried, translucent sheets or discs of various sizes is in accordance with the wording of that subheading.

38 In this respect, the wording of Article 3 of the Directive reproduces the terms of the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 21, which was delivered one and a half years before its adoption. In that judgment, the Court had to determine the type of presence which, although not formally constituting a branch or agency, was nevertheless sufficiently permanent to evidence the establishment of the undertaking in another Member State and therefore fell under the provisions of the Treaty relating to the right of establishment rather than those relating to freedom to provide services. At paragraph 21 of the judgment, the Court held that an insurance undertaking of a Member State which maintains in another Member State a permanent presence that does not take the form of a branch or agency, but consists merely of an office managed by the undertaking's own staff or [of] a person who is independent but authorised to act on a permanent basis for the undertaking, as would be the case with an agency, came within the scope of the provisions of the Treaty on the right of establishment and not within the scope of the provisions on freedom to provide services.

21 IN THAT RESPECT , IT MUST BE ACKNOWLEDGED THAT AN INSURANCE UNDERTAKING OF ANOTHER MEMBER STATE WHICH MAINTAINS A PERMANENT PRESENCE IN THE MEMBER STATE IN QUESTION COMES WITHIN THE SCOPE OF THE PROVISIONS OF THE TREATY ON THE RIGHT OF ESTABLISHMENT , EVEN IF THAT PRESENCE DOES NOT TAKE THE FORM OF A BRANCH OR AGENCY , BUT CONSISTS MERELY OF AN OFFICE MANAGED BY THE UNDERTAKING ' S OWN STAFF OR BY A PERSON WHO IS INDEPENDENT BUT AUTHORIZED TO ACT ON A PERMANENT BASIS FOR THE UNDERTAKING , AS WOULD BE THE CASE WITH AN AGENCY . IN THE LIGHT OF THE AFOREMENTIONED DEFINITION CONTAINED IN THE FIRST PARAGRAPH OF ARTICLE 60 , SUCH AN INSURANCE UNDERTAKING CANNOT THEREFORE AVAIL ITSELF OF ARTICLES 59 AND 60 WITH REGARD TO ITS ACTIVITIES IN THE MEMBER STATE IN QUESTION .

52. The principle of effective judicial protection is a general principle of European Union law to which expression is now given by Article 47 of the Charter (see Case C‑279/09 DEB [2010] ECR I‑0000, paragraphs 30 and 31; order in Case C‑457/09 Chartry [2011] ECR I‑0000, paragraph 25; and Case C‑69/10 Samba Diouf [2011] ECR I‑0000, paragraph 49).

45. Similarly, as regards certain social security benefits under national schemes other than the German care insurance scheme, the Court has held in essence that benefits that are granted objectively on the basis of a legally defined position and are intended to improve the state of health and life of persons reliant on care must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71 (see, to that effect, Case C‑215/99 Jauch [2001] ECR I‑1901, paragraph 28; Case C‑286/03 Hosse [2006] ECR I‑1771, paragraphs 38 to 44; and Case C‑299/05 Commission v Parliament and Council [2007] ECR I‑8695, paragraphs 10, 61 and 70).

61. Benefits granted objectively on the basis of a statutorily defined position and which are intended to improve the state of health and quality of life of persons reliant on care have as their essential purpose supplementing sickness insurance benefits and must be regarded as ‘sickness benefits’ for the purpose of Article 4(1)(a) of Regulation No 1408/71 ( Molenaar , paragraphs 24 and 25; Jauch , paragraph 28; and Hosse , paragraph 38).

46. As to the fact, pointed out by the Netherlands Government, that the interpretation upheld in paragraph 42 of this judgment allows frontier workers to receive unemployment benefits from a Member State to which they did not pay contributions during their last employment, suffice it to state that that is a consequence intended by the Community legislature which meant to increase workers ' chances of finding new employment (see, to similar effect, Van Gestel , cited above, paragraph 26).

53. It follows, in particular, from that provision that the Court of First Instance may annul or alter a decision against which an action has been brought only if, at the time the decision was adopted, it was vitiated by one of those grounds for annulment or alteration. The Court of First Instance may not annul or alter that decision on grounds which come into existence subsequent to its adoption (Case C‑416/04 P Sunrider v OHIM [2006] ECR I‑4237, paragraphs 54 and 55).

55. It follows that the Court of First Instance may annul or alter a decision against which an action has been brought only if, at the time the decision was adopted, it was vitiated by one of those grounds for annulment or alteration. The Court of First Instance may not, however, annul or alter that decision on grounds which come into existence subsequent to its adoption.

30 In those circumstances, to alter the substance of the questions referred for a preliminary ruling in the way proposed by Wiljo would be incompatible with the Court's function under Article 177 of the Treaty and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 20 of the EC Statute of the Court, bearing in mind that, under that provision, only the order of the referring court is notified to the interested parties (see, in particular, the judgment in Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6, and the order in Case C-191/96 Modesti [1996] ECR I-3937, paragraph 5).

54 In the present case, as the Advocate General observed in points 90 to 92 of his Opinion, legislation of a Member State which not only required the use of the official language of that Member State for the drawing-up of invoices relating to cross-border transactions but which also, in addition, permitted an authentic version of such invoices to be drawn up in a language known to the parties concerned, would be less prejudicial to the free movement of goods than the legislation at issue in the main proceedings, while being appropriate for securing the objectives pursued by that legislation (see, by analogy, judgment of 16 April 2013 in Las, C‑202/11, EU:C:2013:239, paragraph 32).

32. Moreover, legislation of a Member State which would not only require the use of the official language of that Member State for cross-border employment contracts, but which also, in addition, would permit the drafting of an authentic version of such contracts in a language known to all the parties concerned, would be less prejudicial to freedom of movement for workers than the legislation in issue in the main proceedings while being appropriate for securing the objectives pursued by that legislation.

47 Concerning the conditions laid down by that legislation, it should be noted that the Court has repeatedly held that the common tax rules laid down by Directive 90/434, which cover a variety of tax advantages, apply without distinction to all operations within the scope of that directive irrespective of the reasons, whether financial, economic or simply fiscal, for those operations (judgment of 20 May 2010, Modehuis A. Zwijnenburg, C‑352/08, EU:C:2010:282, paragraph 41 and the case-law cited).

22. It should be borne in mind in this regard that any activity consisting in offering goods or services on a given market is an economic activity (see, in particular, Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraph 36, and Joined Cases C‑180/98 to C‑184/98 Pavlov and Others [2000] ECR I‑6451, paragraph 75). Provided that that condition is satisfied, the fact that an activity has a connection with sport does not hinder the application of the rules of the Treaty (Case 36/74 Walrave and Koch [1974] ECR 1405, paragraph 4, and Case C‑415/93 Bosman [1995] ECR I-4921, paragraph 73) including those governing competition law (see, to that effect, Case C‑519/04 P Meca‑Medina and Majcen v Commission [2006] ECR I‑6991, paragraphs 22 and 28).

22. It is to be remembered that, having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 EC (see Case 36/74 Walrave and Koch [1974] ECR 1405, paragraph 4; Case 13/76 Donà [1976] ECR 1333, paragraph 12; Case C-415/93 Bosman [1995] ECR I‑4921, paragraph 73; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I‑2549, paragraph 41; and Case C-176/96 Lehtonen and Castors Braine [2000] ECR I‑2681, paragraph 32).

37 In that regard, while it is clear from the judgment in Telefunken Fernseh und Rundfunk (163/84, EU:C:1985:396) that in order to be capable of being the object of a single classification as a ‘set’ of goods, those goods must be presented together for the purposes of customs clearance, it does not follow from that case, however, that in order to be classified as such, the goods must necessarily be in one and the same package at the time of that transaction. The term a ‘set’ of goods refers rather to a combination of articles that are normally offered, in particular in retail shops, as a unit and in a single package, in order to meet a particular need or in order for a specific activity to be performed.

45 That provision, which constitutes a specific expression in the agricultural area of the obligations imposed on Member States by Article 5 of the EC Treaty, defines the principles according to which the Community and the Member States must ensure the implementation of Community decisions on agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations (see Joined Cases 146/81, 192/81 and 193/81 BayWa and Others v Bundesanstalt für Landwirtschaftliche Marktordnung [1982] ECR 1503, paragraph 13). It imposes on the Member States the general obligation to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly, even if the specific Community act does not expressly provide for the adoption of particular supervisory measures (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraphs 16 and 17).

13 REGULATION ( EEC ) NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY LAYS DOWN IN ARTICLE 8 THE PRINCIPLES ACCORDING TO WHICH THE COMMUNITY AND THE MEMBER STATES MUST ORGANIZE THE IMPLEMENTATION OF COMMUNITY DECISIONS ON AGRICULTURAL INTERVENTION FINANCED BY THE FUND AND COMBAT FRAUD AND IRREGULARITIES IN RELATION TO THOSE OPERATIONS . WITH THAT END IN VIEW , ARTICLE 8 ( 1 ) PROVIDED THAT : ' ' THE MEMBER STATES IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION SHALL TAKE THE MEASURES NECESSARY TO SATISFY THEMSELVES THAT TRANSACTIONS FINANCED BY THE FUND ARE ACTUALLY CARRIED OUT AND ARE EXECUTED CORRECTLY , PREVENT AND DEAL WITH IRREGULARITIES ( AND ) RECOVER SUMS LOST AS A RESULT OF IRREGULARITIES OR NEGLIGENCE ' ' .

14 In this regard the Court has already held ( see judgment in Case 291/87, Huber, cited above, paragraphs 17 and 18 ) that works covered by Heading No 99.02 of the Common Customs Tariff are always a reproduction of an original design executed by hand by the artist, without any mechanical or photomechanical process being used to make the original plate from which the impressions are produced .

37. In that regard, it is settled case-law that, in relation to direct taxes, the situations of residents and non-residents within a State are not, as a rule, comparable, since 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; Case C‑234/01 Gerritse [2003] ECR I‑5933, paragraph 43; and Case C‑562/07 Commission v Spain [2009] ECR I‑9553, paragraph 46).

32 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. Moreover, a non-resident' s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is more easy to assess at the place where his personal and financial interests are centred. In general, that is the place where he has his usual abode. Accordingly, international tax law, and in particular the Model Double Taxation Treaty of the Organization for Economic Cooperation and Development (OECD), recognizes that in principle the overall taxation of taxpayers, taking account of their personal and family circumstances, is a matter for the State of residence.

82 In order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights of the European Union when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited).

51. Cet objectif, ainsi que la Cour l’a déjà souligné, a notamment pour objet de sauvegarder la symétrie entre le droit d’imposition des bénéfices et la faculté de déduction des pertes (voir arrêts précités Lidl Belgium, point 33, et Philips Electronics UK, point 24), en particulier afin de prévenir que le contribuable choisisse librement l’État membre où faire valoir de tels bénéfices ou de telles pertes (voir, en ce sens, arrêts précités Oy AA, point 56, et Lidl Belgium, point 34).

34. In circumstances such as those of the main proceedings, to accept that the losses of a non-resident permanent establishment might be deducted from the taxable income of the principal company would result in allowing that company to choose freely the Member State in which those losses could be deducted (see, to that effect, Oy AA , paragraph 56).

52. It is necessary, in assessing the conduct of the taxable person, to take particular account of the objective pursued by the freedom of establishment (see, to that effect, Centros, paragraph 25, and X and Y , paragraph 42).

53 In that respect it follows from the judgments in Case 174/83 Amman v Council [1986] ECR 2647, paras 19 and 20, in Case 175/83 Culmsee v ESC [1986] ECR 2667, paras 19 and 20, in Case 176/83 Allo v Commission [1986] ECR 2687, paras 19 and 20, in Case 233/83 Agostini v Commission [1986] ECR 2709, paras 19 and 20, in Case 247/83 Ambrosetti v Commission [1986] ECR 2729, paras 12 and 20 and in Case 264/83 Delhez v Commission [1986] ECR 2749, paras 20 and 21 that an obligation to pay default interest can arise only where the amount of the principal sum owed is certain or can at least be ascertained on the basis of established objective factors. The same judgments stated that the powers conferred on the Council by Article 65 of the Staff Regulations for adjusting the remuneration and pensions of officials and other servants and for fixing the weightings applicable to such remuneration and pensions involve the exercise of a discretion. No certainty exists as to the amount by which the remuneration and pensions will be adjusted or the manner in which the weightings will be fixed until the Council has exercised those powers and adopted the regulation.

20 IT MUST BE BORNE IN MIND THAT IN ANY EVENT AN OBLIGATION TO PAY DEFAULT INTEREST CAN ARISE ONLY WHERE THE AMOUNT OF THE PRINCIPAL SUM OWED IS CERTAIN OR CAN AT LEAST BE ASCERTAINED ON THE BASIS OF ESTABLISHED OBJECTIVE FACTORS . IN THIS CASE , A DEBT OF A CERTAIN OR ASCERTAINABLE AMOUNT CAME INTO BEING ONLY WITH THE ENTRY INTO FORCE OF REGULATION NO 3139/82 .

36. The intended use of a product may also constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see Case C-459/93 Thyssen Haniel Logistic [1995] ECR I-1381, paragraph 13).

38. That being so, Articles 49 TFEU and 63 TFEU require a Member State which has a system for preventing economic double taxation as regards dividends paid to residents by resident companies to accord equivalent treatment to dividends paid to residents by non-resident companies (see Test Claimants in the FII Group Litigation , paragraph 72, and Haribo Lakritzen Hans Riegel and Österreichische Salinen , paragraph 60).

72. The answer to Question 1 must therefore be that Articles 43 EC and 56 EC must be interpreted as meaning that, where a Member State has a system for preventing or mitigating the imposition of a series of charges to tax or economic double taxation as regards dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way.

37. Indeed, in accordance with the settled case-law of the Court, the prohibition of quantitative restrictions and of all measures having equivalent effect, laid down in Articles 34 TFEU and 35 TFEU, applies not only to national measures but also to measures adopted by the EU institutions (see, to that effect, judgments in Denkavit Nederland , 15/83, EU:C:1984:183, paragraph 15; Meyhui , C‑51/93, EU:C:1994:312, paragraph 11; Kieffer and Thill , C‑114/96, EU:C:1997:316, paragraph 27; and Alliance for Natural Health and Others , C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 47).

31. According to settled case‑law, for a trade mark to possess distinctive character for the purposes of that provision, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings ( Henkel v OHIM , paragraph 34; Case C‑304/06 P Eurohypo v OHIM [2008] ECR I‑3297, paragraph 66; and Case C‑398/08 P Audi v OHIM [2010] ECR I‑0000, paragraph 33).

34. For a trade mark to possess distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings (see, in relation to Article 3(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), a provision which is identical to Article 7(1)(b), Joined Cases C-53/01 to C‑55/01 Linde and Others [2003] ECR I-3161, paragraph 40).

49. As is apparent from paragraph 42 of this judgment, Article 10 of the Directive, which relates to acquisitions made by private individuals which are dispatched or transported directly or indirectly by the vendor or on his behalf, cannot, however, apply wher e, as in the case in the main proceedings, the transport is initiated, not by the vendor, but by the private individual who has purchased the products subject to excise duty ( EMU Tabac and Others , paragraphs 48 and 49).

52 By contrast, according to the settled case-law of the Court, the unlawful conduct of a subsidiary may be attributed to the parent company in particular where, although having a separate legal personality, that subsidiary does not determine independently its own conduct on the market, but essentially carries out the instructions given to it by the parent company, having regard especially to the economic, organisational and legal links between those two legal entities (see, to that effect, judgments of 14 July 1972, Imperial Chemical Industries v Commission, 48/69, EU:C:1972:70, paragraphs 131 to 133; of 25 October 1983, AEG-Telefunken v Commission, 107/82, EU:C:1983:293, paragraphs 49 to 53; of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 157; and of 17 September 2015, Total v Commission, C‑597/13 P, EU:C:2015:613, paragraph 35).

35. Thus, the conduct of a subsidiary can be imputed to the parent company where the latter does in fact exercise a decisive influence over the conduct of its subsidiary (see, to that effect, judgment in Akzo Nobel and Others v Commission , C‑97/08 P, EU:C:2009:536, paragraphs 58 and 59 and the case-law cited).

26. Regarding services of a medical nature, the case-law is to the effect that the term ‘medical care’ in Article 13A(1)(b) of the Sixth Directive must be interpreted as covering all provisions of medical care envisaged in letter (c) of the same provision ( Dornier , paragraph 50), since those two provisions are intended to regulate all exemptions of medical services in the strict sense ( Kügler , paragraph 36).

32. Since they do not therefore apply to all economic operators, these measures cannot be considered to be general measures of tax or economic policy (see Case C‑66/02 Italy v Commission , paragraph 99, and Case C-148/04 Unicredito Italiano [2005] ECR I-0000, paragraph 49).

49. Since it does not apply to all economic operators, it cannot be considered to be a general measure of tax or economic policy.

19 However, the Court has also consistently held (Cassis de Dijon, cited above; Case C-238/89 Pall [1990] ECR I-4827, paragraph 12, and Case C-470/93 Mars [1995] ECR I-1923, paragraph 15) that the provisions of national law in question must be proportionate to the objective pursued and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade.

100 Even though the national legislation at issue in the main proceedings states that the power not to authorise collective redundancies with which the public authority is vested in the present instance must be exercised by analysing the documents in the file, while taking account of the situation of the undertaking and the conditions in the labour market, and must result in a reasoned decision, it is clear that, in the absence of details of the particular circumstances in which the power in question may be exercised, the employers concerned do not know in what specific objective circumstances that power may be applied, as the situations allowing its exercise are potentially numerous, undetermined and indeterminable and leave the authority concerned a broad discretion that is difficult to review. Such criteria which are not precise and are not therefore founded on objective, verifiable conditions go beyond what is necessary in order to attain the objectives stated and cannot therefore satisfy the requirements of the principle of proportionality (see, to that effect, judgments of 4 June 2002, Commission v France , C‑483/99, EU:C:2002:327, paragraphs 51 and 53; of 26 March 2009, Commission v Italy , C‑326/07, EU:C:2009:193, paragraphs 66 and 72; and of 8 November 2012, Commission v Greece , C‑244/11, EU:C:2012:694, paragraphs 74 to 77 and 86).

66. The Decree of 2004 contains no details of the circumstances in which the criteria for the exercise of the power of veto provided by Article 2(1)(c) of Decree-Law No 332/1994 may be applicable. Even if that power may be exercised only in situations of real serious risk or health emergencies, in accordance with Article 1(2) of the Decree, and in observance of the conditions referred to in Article 1(1) of the Decree, that is to say, for reasons of public policy, public safety, public health and defence, investors do not know, for want of any information as to the actual circumstances permitting the exercise of the power in question, when the power of veto may be applicable. In consequence, it must be considered, as the Commission argues, that the situations allowing the exercise of the power of veto are potentially numerous, undetermined and undeterminable, and that they leave the Italian authorities broad discretion.

37. In addition, as the Advocate General noted in point 93 of his Opinion, the grant of compensatory interest does not fall within the legal framework of the measure adopted to comply with the judgment, for the purposes of the first paragraph of Article 266 TFEU, but comes under the second paragraph of Article 266 TFEU, which refers to Article 340 TFEU, that is to say, to the general law on the non-contractual liability of the European Union (see, to that effect, judgment in Commission v Brazzelli Lualdi and Others , C‑136/92 P, EU:C:1994:211, paragraph 42). That category of interest is designed to compensate for the time that passes before the judicial assessment of the amount of damage, irrespective of any delay attributable to the debtor.

22. The Court may of its own motion, on a proposal from the Advocate General or at the request of the parties order the reopening of the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Joined Cases C-270/97 and C-271/97 Deutsche Post [2000] ECR I-929, paragraph 30, and Case C-299/99 Philips [2002] ECR I-5475, paragraph 20).

20 The Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Joined Cases C-270/97 and C-271/97 Deutsche Post [2000] ECR I-929, paragraph 30).

63. In so far as the Italian Republic contends that the recognition by the competent authorities in one province of a licence issued in another is hampered by the fact that the issue of such a licence also depends on the assessment of local economic conditions by the Questore in each province, suffice it to recall that, in accordance with established case-law, any system of prior authorisation must be based on objective criteria which are non-discriminatory and known in advance by the persons concerned (Case C-463/00 Commission v Spain [2003] ECR I‑4581, paragraph 69 and the case-law cited, and Case C-372/04 Watts [2006] ECR I‑4325, paragraph 116). Since such an assessment lacks objective criteria which are known in advance by the undertakings concerned, that argument cannot justify the non-recognition by the Questore in one province of a licence issued by the Questore in another.

61. As regards, first, the allegation of the General Court’s lack of objectivity and impartiality, based on the finding, in paragraph 348 of the judgment under appeal, that GKV’s subsidiaries benefited from the infringement in question, it is important to note that the Court of Justice has no jurisdiction, on appeal, to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. The appraisal of those facts and the evidence produced to the General Court does not therefore, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (see Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑0000, paragraph 52 and the case-law cited).

52. In this connection it should be recalled that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 52; Case C‑266/06 P Evonik Degussa v Commission and Council [2008] ECR I‑0000, paragraph 73; and Joined Cases C‑101/07 P and C‑110/07 P Coop de France bétail et viande and Others v Commission [2008] ECR I‑0000, paragraph 59).

16 It is settled case-law that Article 59 of the Treaty requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less attractive the activities of a provider of services established in another Member State in which he lawfully provides similar services (see Case C-76/90 Säger [1991] ECR I-4221, paragraph 12; Case C-43/93 Vander Elst [1994] ECR I-3803, paragraph 14; Case C-272/94 Guiot [1996] ECR I-1905, paragraph 10; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 33; and Case C-165/98 Mazzoleni and ISA [2001] ECR I-2189, paragraph 22).

32 It should be noted, as a preliminary point, that, having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the EC Treaty (now, after amendment, Article 2 EC) (see Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405, paragraph 4, and Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 73). The Court has also acknowledged that sport has considerable social importance in the Community (see Bosman, paragraph 106).

73 In response to those arguments, it is to be remembered that, having regard to the objectives of the Community, sport is subject to Community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty (see Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405, paragraph 4). This applies to the activities of professional or semi-professional footballers, where they are in gainful employment or provide a remunerated service (see Case 13/76 Donà v Mantero [1976] ECR 1333, paragraph 12).

17. In order to reply to the question reformulated in that way, it should be noted that, in paragraph 45 of the judgment in Case C-427/98 Commission v Germany [2002] ECR I-8315, which deals inter alia with the determination of the taxable amount in the hands of manufacturers who issue reduction coupons such as those at issue in the main proceedings, the Court held, essentially, that such a manufacturer may be regarded as a third party as regards the transaction between the retailer who receives reimbursement of the value of the coupon and the final consumer who used such a coupon.

39. In that regard, it should be remembered that an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects (judgments in Commission v Council (‘ ERTA ’), 22/70, EU:C:1971:32, paragraph 42; Parliament v Council and Commission , C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 13; and Commission v Council , C‑27/04, EU:C:2004:436, paragraph 44).

13 However, the Court has consistently held that an action for annulment is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects (Case 22/70 Commission v Council [1971] ECR 263).

37. In that regard, it is clear from the case-law of the Court that, if the purpose of a formality imposed on the importer of a product subject to a national tax is to ensure payment of the debt corresponding to that tax, such a formality is related to the event giving rise to the tax, namely an intra-Community acquisition, and not to the crossing of a frontier in the sense of that provision (see, to that effect, judgments in Brzeziński , EU:C:2007:33, paragraphs 47 and 48, and Kalinchev , EU:C:2010:312, paragraph 27).

12. In that regard, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning EU law in situations in which the facts in the main proceedings fell outside the direct scope of that law, provided always that those provisions had been rendered applicable by the national law, which adopted, for solutions applied to purely internal situations, the same approach as that for solutions provided for under EU law. In such cases, according to the settled case-law of the Court, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, inter alia, judgments in Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 20, and FNV Kunsten Informatie en Media , C‑413/13, EU:C:2014:2411, paragraph 18).

20. Applying that case-law, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning European Union law in situations where the facts of the cases being considered by the national courts were outside the direct scope of European Union law but where those provisions had been rendered applicable by domestic law, which adopted, for internal situations, the same approach as that provided for under European Union law. In those circumstances, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from European Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, to that effect, inter alia, Joined Cases C‑297/88 and C‑197/89 Dzodzi [1990] ECR I‑3763, paragraph 37; Case C‑28/95 Leur-Bloem [1997] ECR I‑4161, paragraphs 27 and 32; Case C‑1/99 Kofisa Italia [2001] ECR I‑207, paragraph 32; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 19; Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 21; Case C‑352/08 Modehuis A. Zwijnenburg [2010] ECR I‑4303, paragraph 33; and Case C‑603/10 Pelati [2012] ECR I‑0000, paragraph 18).

17 However, in view of the specific requirements in relation to certain services, the fact that a Member State makes the provision thereof subject to conditions as to the qualifications of the person providing them, pursuant to rules governing such activities within its jurisdiction, cannot be considered incompatible with Articles 59 and 60 of the Treaty. Nevertheless, as one of the fundamental principles of the Treaty the freedom to provide services may be restricted only by rules which are justified in the general interest and are applied to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established. In addition, such requirements must be objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected (see inter alia the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, at paragraph 27).

41. In that case, any restriction which, without objective justification, is liable to prohibit, impede or render less attractive the provision of those services must be declared incompatible with EU law. Where it is applicable, Regulation No 4055/86 transposes, in essence, the rules of the treaty relating to the freedom to provide services and the case-law relating thereto ( Commission v France , C‑381/93, EU:C:1994:370, paragraphs 13 and 16; Commission v Italy , EU:C:2002:100, paragraphs 9 and 10; Sea-Land Service and Nedlloyd Lijnen , EU:C:2002:364, paragraphs 31 and 32; Geha Naftiliaki and Others , C‑435/00, EU:C:2002:661, paragraphs 20 and 21; and Commission v Spain , C‑18/09, EU:C:2010:58, paragraph 12). That case-law includes the judgment in Laval un Partneri (C‑341/05, EU:C:2007:809) relating to the compatibility of industrial action with the freedom to provide services.

21 Since Article 1(1) of Regulation No 4055/86 has extended the principle of the freedom to provide services as regards intra-Community traffic to traffic between a Member State and a third country, the rules established in relation to the former must be applied to the latter.

20. It is settled case‑law that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions referred concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see Case C‑553/11 Rintisch [2012] ECR I‑0000, paragraph 15 and the case-law cited).

88. The Court has had occasion to contemplate the application of that case-law in actions seeking the annulment of a Commission decision terminating a procedure initiated under Article 88(2) EC. It has held that certain associations of economic operators which have played a significant role in the procedure under that provision must be recognised as individually concerned by such a decision, in so far as they are affected in their capacity as negotiators (see, to that effect, Case C‑106/98 P Comité d’entreprise de la Société française de production and Others , paragraphs 40 to 42).

41 An undertaking cannot therefore rely solely on its status as a competitor of the undertaking in receipt of aid but must additionally show that its circumstances distinguish it in a similar way to the undertaking in receipt of the aid, account being taken of the extent of its possible participation in the procedure and the magnitude of the prejudice to its position on the market.

46. In that regard, it must be held, first, that there is nothing to suggest that an employee who is a board member of a capital company, in particular, a small or medium sized company such as that at issue in the main proceedings, is necessarily in a different situation from that of other persons employed by that company as regards the need to mitigate the consequences of his dismissal, and, inter alia, to alert, for that purpose, the competent public authority so that it is able to seek solutions to the problems raised by all the projected collective redundancies (see, to that effect, judgment in Junk , C‑188/03, EU:C:2005:59, paragraph 48, and in Claes and Others , C‑235/10 to C‑239/10, EU:C:2011:119, paragraph 56).

44. Second, the principle of legal certainty, a general principle of Community law, requires that Community rules binding on individuals must be clear and precise so that they may know without ambiguity what are their rights and obligations and may take steps accordingly (see, in particular, Case 169/80 Gondrand and Garancini [1981] ECR 1931, paragraph 17).

17 THAT ARGUMENT MUST BE REJECTED . EVEN ASSUMING THAT THE INTERPRETATION ADVOCATED BY THE COMMISSION IS IN ACCORD WITH THE LOGIC OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , NEVERTHELESS IT IS FOR THE COMMUNITY LEGISLATURE TO ADOPT THE APPROPRIATE PROVISIONS . THE PRINCIPLE OF LEGAL CERTAINTY REQUIRES THAT RULES IMPOSING CHARGES ON THE TAXPAYER MUST BE CLEAR AND PRECISE SO THAT HE MAY KNOW WITHOUT AMBIGUITY WHAT ARE HIS RIGHTS AND OBLIGATIONS AND MAY TAKE STEPS ACCORDINGLY .

27. It should be recalled that where a particular sphere has been the subject of exhaustive harmonisation at Community level, any national measure relating thereto must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty (Case C‑463/01 Commission v Germany [2004] ECR I‑11705, paragraph 36 and the case-law cited).

29 It is settled case-law of the Court that the right to a refund of charges levied in a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court (see, inter alia, judgments of 9 November 1983, San Giorgio, 199/82, EU:C:1983:318, paragraph 12; of 8 March 2001, Metallgesellschaft and Others, C‑397/98 and C‑410/98, EU:C:2001:134, paragraph 84, and of 19 July 2012, Littlewoods Retail and Others, C‑591/10, EU:C:2012:478, paragraph 24). The Member State is therefore required, in principle, to repay charges levied in breach of EU law (see, inter alia, judgments of 14 January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraph 20, and of 19 July 2012, Littlewoods Retail and Others, C‑591/10, EU:C:2012:478, paragraph 24).

20 The first point to note is that entitlement to the repayment of charges levied by a Member State in breach of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting such charges (San Giorgio, cited above, paragraph 12). The Member State is therefore in principle required to repay charges levied in breach of Community law.

212. As regards the second condition, it should be pointed out, first, that a breach of Community law will be sufficiently serious where, in the exercise of its legislative power, a Member State has manifestly and gravely disregarded the limits on its discretion (see Brasserie du Pêcheur and Factortame , paragraph 55; British Telecommunications , paragraph 42; and Case C-424/97 Haim [2000] ECR I‑5123, paragraph 38). Secondly, where, at the time when it committed the infringement, the Member State in question had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C‑5/94 Hedley Lomas [1996] ECR I-2553, paragraph 28, and Haim , paragraph 38).

24 It is, furthermore, clear from, in particular, the judgment in Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraphs 84 to 86, that justifications on grounds of public policy, public security or public health, as envisaged in Article 48(3) of the Treaty, may be relied upon not only by Member States in order to justify limitations on freedom of movement for workers under their laws, regulations or administrative provisions but also by individuals in order to justify such limitations under agreements or other measures adopted by persons governed by private law. Thus, if an employer may rely on a derogation under Article 48(3), he must also be able to rely on the same principles under, in particular, Article 48(1) and (2).

84 It has further observed that working conditions in the different Member States are governed sometimes by provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons. Accordingly, if the scope of Article 48 of the Treaty were confined to acts of a public authority there would be a risk of creating inequality in its application (see Walrave, cited above, paragraph 19). That risk is all the more obvious in a case such as that in the main proceedings in this case in that, as has been stressed in paragraph 24 above, the transfer rules have been laid down by different bodies or in different ways in each Member State.

63 It must be recalled that aid of a relatively low amount is liable to affect competition and trade between Member States where there is strong competition in the sector in which undertakings receiving that aid operate (Case 259/85 France v Commission [1987] ECR 4393, paragraph 24, and Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 27).

25. Next, with regard to the concept of ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, it is important to note that the Court has repeatedly held that the directive defines that concept as any period during which the worker is at work, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practices, and that that concept is placed in opposition to rest periods, the two being mutually exclusive (judgments in Jaeger , C‑151/02, EU:C:2003:437, paragraph 48; Dellas and Others , C‑14/04, EU:C:2005:728, paragraph 42, and orders in Vorel , C‑437/05, EU:C:2007:23, paragraph 24, and Grigore , C‑258/10, EU:C:2011:122, paragraph 42).

48. With regard more specifically to the concept of " working time" for the purposes of Directive 93/104, it is important to point out that at paragraph 47 of the judgment in Simap , the Court noted that the directive defines that concept as any period during which the worker is working, at the employer ' s disposal and carrying out his activity or duties, in accordance with national laws and/or practices, and that that concept is placed in opposition to rest periods, the two being mutually exclusive.

31 Where the unlawful introduction of goods into the customs territory of the European Union is carried out by an employee in the name and on behalf of the employer, the latter must be regarded as the person who, by his actions, is responsible for that unlawful introduction (see, to that effect, judgment of 23 September 2004, Spedition Ulustrans, C‑414/02, EU:C:2004:551, paragraph 29).

15. Next, as regards the free movement of capital, it should be borne in mind that, in the absence of a definition in the FEU Treaty of the concept of ‘movement of capital’, the Court has recognised the Nomenclature annexed to Directive 88/361 as having indicative value, even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty were replaced by Articles 73b to 73g of the EC Treaty, which in turn became Articles 56 EC to 60 EC), it being understood that, in accordance with its introduction, the list set out therein is not exhaustive (see Case C‑513/03 van Hilten-van der Heijden [2006] ECR I‑1957, paragraph 39; Case C-386/04 Centro di Musicologia Walter Stauffer [2006] ECR I-8203, paragraph 22; Case C‑11/07 Eckelkamp and Others [2008] ECR I‑6845, paragraph 38; Case C‑43/07 Arens‑Sikken [2008] ECR I‑6887, paragraph 29; and Case C‑510/08 Mattner [2010] ECR I‑0000, paragraph 19).

22. The Treaty does not define the notions of ‘capital movements’ or ‘payments’. However, it is established case-law that, in as much as Article 73b of the EC Treaty substantially reproduces the contents of Article 1 of Directive 88/361, and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty having been replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature in respect of ‘movements of capital’ annexed to Directive 88/361 still has the same indicative value, for the purposes of defining the notion of capital movements, as it did before the entry into force of those provisions, subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see, inter alia, Case C-222/97 Trummer and Mayer [1999] ECR I‑1661, paragraph 21, Joined Cases C-515/99, C-519/99 to C‑524/99 and C‑526/99 to C-540/99 Reisch and Others [2002] ECR I-2157, paragraph 30, and Van Hilten-van der Heijden , paragraph 39).

33. Regarding the first plea of inadmissibility, the Court notes that it is settled case-law that, in the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see, inter alia, Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 42, and Case C‑365/97 Commission v Italy [1999] ECR I-7773, paragraph 32).

64. According to that judgment, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements, within the Member State of importation, is not such as to hinder trade between Member States so long as, first, those provisions apply to all relevant traders operating within the national territory and, secondly, they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. The reason is that the application of such provisions is not such as to prevent access by the latter products to the market of the Member State of importation or to impede such access more than it impedes access by domestic products (Case C‑384/93 Alpine Investments [1995] ECR I‑1141, paragraph 37).

37 According to that judgment, the application to products from other Member States of national provisions restricting or prohibiting, within the Member State of importation, certain selling arrangements is not such as to hinder trade between Member States so long as, first, those provisions apply to all relevant traders operating within the national territory and, secondly, they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. The reason is that the application of such provisions is not such as to prevent access by the latter to the market of the Member State of importation or to impede such access more than it impedes access by domestic products.

43 It should be pointed out in this respect that Community legislation must be certain and its application foreseeable by those subject to it (see, to that effect, Case 325/85 Ireland v Commission [1987] ECR 5041, paragraph 18).

32. Nevertheless, as is apparent from paragraphs 27 to 30 of the judgment in Nestlé , the ‘use’ of a mark, in its literal sense, generally encompasses both its independent use and its use as part of another mark taken as a whole or in conjunction with that other mark.

29. The expression ‘use of the mark as a trade mark’ must therefore be understood as referring solely to use of the mark for the purposes of the identification, by the relevant class of persons, of the product or service as originating from a given undertaking.

32 In that context, it should nevertheless be noted that, in the absence of harmonisation of procedural means governing the relationship between collective and individual actions as provided for under Directive 93/13, it is for the internal legal order of each Member State, under the principle of procedural autonomy, to establish such rules, on condition, however, that they are not less favourable than those governing similar situations subject to domestic law (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by EU law on consumer protection associations (principle of effectiveness) (see, by way of analogy, judgment in Asociación de Consumidores Independientes de Castilla y León, C‑413/12, EU:C:2013:800, paragraph 30 and the case-law cited).

57. In Karella (paragraph 30) and Syndesmos Melon (paragraph 27), the Court pointed out that the Second Directive is intended to ensure that members ' and third parties ' rights are safeguarded, in particular in the operations for setting up companies and increasing and reducing their capital. The directive does not, admittedly, preclude the taking of execution measures intended to put an end to the company ' s existence and, in particular, does not preclude liquidation measures placing the company under compulsory administration with a view to safeguarding the rights of creditors. However, the directive continues to apply where ordinary reorganization measures are taken in order to ensure the survival of the company, even if those measures mean that the shareholders and the normal organs of the company are temporarily divested of their powers.

30 That objection cannot be accepted. The directive is intended to ensure that members' and third parties' rights are safeguarded, in particular in operations for setting up companies and increasing and reducing company capital. In order to be effective, that safeguard must be secured for members as long as the company continues to exist with its own structures. Whilst the directive does not preclude the taking of execution measures and, in particular, liquidation measures placing the company under compulsory administration in the interests of safeguarding creditors' rights, it nevertheless continues to apply as long as the company' s shareholders and normal bodies have not been divested of their powers. Certainly, this is true where there is a straightforward rejuvenation measure involving public bodies or companies governed by private law where the members' right to the capital and to decision-making power in the company is in question.

36. Knowledge of those implications in the light of the conservation objectives relating to the site concerned is a necessary prerequisite for application of Article 6(4) since, in the absence thereof, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified (Case C‑404/09 Commission v Spain EU:C:2011:768, paragraph 109).

45. However, the operation consisting in having personal data transferred from a Member State to a third country constitutes, in itself, processing of personal data within the meaning of Article 2(b) of Directive 95/46 (see, to this effect, judgment in Parliament v Council and Commission , C‑317/04 and C‑318/04, EU:C:2006:346, paragraph 56) carried out in a Member State. That provision defines ‘processing of personal data’ as ‘any operation or set of operations which is performed upon personal data, whether or not by automatic means’ and mentions, by way of example, ‘disclosure by transmission, dissemination or otherwise making available’.

56. It follows that the transfer of PNR data to CBP constitutes processing operations concerning public security and the activities of the State in areas of criminal law.

105. In that regard, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, to that effect, Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑0000, paragraph 29).

32 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 [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, and Gloszczuk, paragraph 48).

29 IN THAT RESPECT IT MUST BE OBSERVED THAT ALTHOUGH ARTICLE 21 OF THE AGREEMENT AND ARTICLE 95 OF THE EEC TREATY HAVE THE SAME OBJECT INASMUCH AS THEY AIM AT THE ELIMINATION OF TAX DISCRIMINATION , BOTH PROVISIONS , WHICH ARE MOREOVER WORDED DIFFERENTLY , MUST HOWEVER BE CONSIDERED AND INTERPRETED IN THEIR OWN CONTEXT .

60. The principle that acts of the Community institutions are presumed to be lawful means that they produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (Case C‑475/01 Commission v Greece [2004] ECR I‑8923, paragraph 18, and the case-law cited).

26. In those circumstances, it is necessary to consider whether the renewal may be recognised as an exceptional measure, as expressly provided for in Articles 45 EC and 46 EC, or justified, in accordance with the case-law of the Court, for reasons of overriding general interest (see, to that effect, Case C-243/01 Gambelli and Others [2003] ECR I-13031, paragraph 60, and Placanica and Others , cited above, paragraph 45).

60. In those circumstances it is necessary to consider whether such restrictions are acceptable as exceptional measures expressly provided for in Articles 45 and 46 EC, or justified, in accordance with the case-law of the Court, for reasons of overriding general interest.

65 Just as the concept of waste is not to be understood as excluding substances and objects which are capable of economic reutilisation (see Vessoso and Zanetti, cited above, paragraph 9), it is not to be understood as excluding substances and objects which are capable of being recovered as fuel in an environmentally responsible manner and without substantial treatment.

29. Finally, it must be held that such a tax cannot be ‘characterised as [a] turnover tax …’ within the meaning of that provision where it applies only to a defined category of products, namely alcoholic beverages (see, inter alia, Case 252/86 Bergandi [1988] ECR 1343, paragraphs 15 and 16; EKW and Wein & Co ., paragraphs 22 and 23, and Case C-308/01 GIL Insurance and Others [2004] ECR I‑0000, paragraphs 33 and 35).

23 It follows that Article 33 of the Sixth Directive precludes the maintenance or introduction of stamp duties or other types of taxes, duties or charges which have the essential characteristics of VAT. The Court also stated in paragraphs 19 and 20 of its judgment in Solisnor-Estaleiros Navais that Article 33 of the Sixth Directive does not preclude the maintenance or introduction of a tax, on condition that it does not have any of the essential characteristics of VAT.

29 Concerning the second limb of the Commission's second complaint, it should be recalled that, although many purification plans limited to the regional level may in principle constitute a plan within the meaning of Article 4(2) of the Directive, the sum of the documents submitted by a Member State must in any event reveal an overall plan that reflects a comprehensive and coherent approach (see, to that effect, Case C-58/89 Commission v Germany [1991] ECR I-4983, paragraph 25; Case C-207/97 Commission v Belgium [1999] ECR I-275, paragraph 40).

16 In order to construe the term "document which instituted the proceedings or ... equivalent document" used in Article 27(2) of the Convention, it must first be noted that the provisions of the Convention as a whole, both in Title II on jurisdiction and in Title III on recognition and enforcement, manifest an intention to ensure that, within the scope of the objectives of the Convention, proceedings culminating in judicial decisions are conducted in such a way that the rights of the defence are observed (Denilauler, paragraph 13).

13 ALL THE PROVISIONS OF THE CONVENTION , BOTH THOSE CONTAINED IN TITLE II ON JURISDICTION AND THOSE CONTAINED IN TITLE III ON RECOGNITION AND ENFORCEMENT , EXPRESS THE INTENTION TO ENSURE THAT , WITHIN THE SCOPE OF THE OBJECTIVES OF THE CONVENTION , PROCEEDINGS LEADING TO THE DELIVERY OF JUDICIAL DECISIONS TAKE PLACE IN SUCH A WAY THAT THE RIGHTS OF THE DEFENCE ARE OBSERVED . IT IS BECAUSE OF THE GUARANTEES GIVEN TO THE DEFENDANT IN THE ORIGINAL PROCEEDINGS THAT THE CONVENTION , IN TITLE III , IS VERY LIBERAL IN REGARD TO RECOGNITION AND ENFORCEMENT . IN THE LIGHT OF THESE CONSIDERATIONS IT IS CLEAR THAT THE CONVENTION IS FUNDAMENTALLY CONCERNED WITH JUDICIAL DECISIONS WHICH , BEFORE THE RECOGNITION AND ENFORCEMENT OF THEM ARE SOUGHT IN A STATE OTHER THAN THE STATE OF ORIGIN , HAVE BEEN , OR HAVE BEEN CAPABLE OF BEING , THE SUBJECT IN THAT STATE OF ORIGIN AND UNDER VARIOUS PROCEDURES , OF AN INQUIRY IN ADVERSARY PROCEEDINGS . IT CANNOT THEREFORE BE DEDUCED FROM THE GENERAL SCHEME OF THE CONVENTION THAT A FORMAL EXPRESSION OF INTENTION WAS NEEDED IN ORDER TO EXCLUDE JUDGMENTS OF THE TYPE IN QUESTION FROM RECOGNITION AND ENFORCEMENT .

14 As is apparent from paragraph 61 of the judgment in Schindler, the Court held that those particular factors justify national authorities having a sufficient degree of latitude to determine what is required to protect the players and, more generally, in the light of the specific social and cultural features of each Member State, to maintain order in society, as regards the manner in which lotteries are operated, the size of the stakes, and the allocation of the profits they yield. In those circumstances, it is for them to assess not only whether it is necessary to restrict the activities of lotteries but also whether they should be prohibited, provided that those restrictions are not discriminatory.

84 If the judicial review guaranteed by Article 47 of the Charter is to be effective, the reasons given by the requesting authority must put the national court in a position in which it may carry out the review of the legality of the request for information (see, to that effect, judgments of 4 June 2013, ZZ, C‑300/11, EU:C:2013:363, paragraph 53, and of 23 October 2014, Unitrading, C‑437/13, EU:C:2014:2318, paragraph 20).

20. In that regard, it must be borne in mind that, according to the Court’s settled case-law, if the judicial review guaranteed by Article 47 of the Charter is to be effective, on the one hand, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court with jurisdiction. On the other, the court with jurisdiction must have the power to require the authority concerned to provide that information, in order to put that court fully in a position in which it may carry out the review of the lawfulness of the national decision in question (see to that effect, judgment in ZZ , EU:C:2013:363, paragraph 53 and the case-law cited).

78 In order to determine whether a clause in the tender specifications for a public contract that imposes a national origin requirement for medicinal products derived from plasma, such as that at issue in the main proceedings, constitutes a restriction that is prohibited under Article 34 TFEU, the Court must examine whether it can be justified on grounds of public health protection, as the Slovenian Government and the Commission in particular have submitted (see, by analogy, judgment of 9 December 2010, Humanplasma, C‑421/09, EU:C:2010:760, paragraph 31).

29. The first point to be noted is that, according to settled case‑law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the Court of First Instance’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, Case C‑259/96 P Council v de Nil and Impens [1998] ECR I‑2915, paragraphs 32 and 33, and Case C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 70).

33 In this case the reasoning of the Court of First Instance at paragraph 51 of the judgment under appeal, according to which the damage suffered by each of the applicants amounted ex aequo et bono to BFR 500 000, does not enable the Court to acquaint itself with the criteria taken into account for the purposes of determining that amount. In the absence of such information, the Court is not, however, in a position to decide whether the judgment under appeal is in breach of the principle of proportionality on that point.

24 The Court of Justice thus has no jurisdiction to find the facts or, as a rule, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (see, in particular, the order in San Marco v Commission, cited above, paragraph 40). That appraisal does not therefore constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42).

36. In examining that argument, due account must be taken of the objective pursued by Article 7(1)(c) of Regulation No 40/94. Each of the grounds for refusal listed in Article 7(1) must be interpreted in the light of the general interest underlying it (see, inter alia, Joined Cases C-456/01 P and C‑457/01 P Henkel v OHIM [2004] ECR I‑5089, paragraph 45, and Case C‑48/09 P Lego Juris v OHIM [2010] ECR I‑0000, paragraph 43).

43. In considering that complaint, it must be borne in mind that each of the grounds for refusal to register listed in Article 7(1) of Regulation No 40/94 must be interpreted in the light of the public interest underlying them ( Henkel v OHIM , paragraph 45, and Case C‑173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I‑551, paragraph 59). The interest underlying Article 7(1)(e)(ii) of Regulation No 40/94 is to prevent trade mark law granting an undertaking a monopoly on technical solutions or functional characteristics of a product (see by analogy, with regard to the second indent of Article 3(1)(e) of Directive 89/104, Philips , paragraph 78, and Joined Cases C-53/01 to C-55/01 Linde and Others [2003] ECR I‑3161, paragraph 72).

97. Firstly, with respect to the argument that the disadvantage suffered by a taxpayer such as Mr de Groot in relation to the reduction of tax is to a large extent compensated for by a progressivity advantage, described by the Advocate General at the national court and referred to by the Belgian Government, it is sufficient to state that it is settled case-law that detrimental tax treatment contrary to a fundamental freedom cannot be justified by the existence of other tax advantages, even if those advantages exist (see, with respect to the freedom of establishment, Case 270/83 Commission v France [1986] ECR 273, paragraph 21, Case C-107/94 Asscher [1996] ECR I-3089, paragraph 53, and Saint-Gobain , paragraph 54; with respect to the freedom to provide services, Case C-294/97 Eurowings Luftverkehr [1999] ECR I-7447, paragraph 44; and, with respect to the free movement of capital, Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 61).

75 Moreover, as the Court has previously held, it is evident both from the purpose of Directive 80/987, which is to ensure a minimum of protection for all employees, and from the fact that exclusions under Article 1(2 ) of the directive are possible only by way of exception, that the only protection which may be regarded as ‘equivalent’ within the meaning of that provision is that which, while being based on a scheme whose detailed rules differ from those laid down by the directive, affords employees the essential guarantees set out in that directive (judgment in Commission v Greece, C‑53/88, EU:C:1990:380, paragraph 19).

19 It should be pointed out first of all that it is evident both from the purpose of the directive, which seeks to ensure a minimum of protection for all employees, and from the fact that exclusions under Article 1(2 ) are possible only by way of exception, that the only protection which may be regarded as "equivalent" within the meaning of that provision is that which, while being based on a scheme whose detailed rules differ from those laid down by the directive, affords employees the essential guarantees set out in that directive .

19 It should also be borne in mind that, in accordance with the case-law beginning with Cassis de Dijon (Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649), in the absence of harmonisation of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30, even if those rules apply without distinction to all products, unless their application can be justified by a public-interest objective taking precedence over the free movement of goods (Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 15, and Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs v Heinrich Bauer Verlag [1997] ECR I-3689, paragraph 8).

27. In such a case, the possession of a diploma certifying that the candidate has passed a language examination may constitute a criterion for assessing the required linguistic knowledge (see, to that effect, Angonese , EU:C:2000:296, paragraph 44).

44 So, even though requiring an applicant for a post to have a certain level of linguistic knowledge may be legitimate and possession of a diploma such as the Certificate may constitute a criterion for assessing that knowledge, the fact that it is impossible to submit proof of the required linguistic knowledge by any other means, in particular by equivalent qualifications obtained in other Member States, must be considered disproportionate in relation to the aim in view.

53. Article 7 of Directive 2004/38, which concerns the right of residence for more than three months, likewise requires that the family members of a Union citizen who are not nationals of a Member State ‘accompany’ or ‘join’ him in the host Member State in order to enjoy a right of residence there (judgment in Metock and Others , C‑127/08, EU:C:2008:449, paragraph 86).

98. Thus, in the main proceedings, the fact that Inspire Art was formed in the United Kingdom for the purpose of circumventing Netherlands company law which lays down stricter rules with regard in particular to minimum capital and the paying-up of shares does not mean that that company ' s establishment of a branch in the Netherlands is not covered by freedom of establishment as provided for by Articles 43 EC and 48 EC. As the Court held in Centros (paragraph 18), the question of the application of those articles is different from the question whether or not a Member State may adopt measures in order to prevent attempts by certain of its nationals improperly to evade domestic legislation by having recourse to the possibilities offered by the Treaty.

18 That Mrs and Mrs Bryde formed the company Centros in the United Kingdom for the purpose of avoiding Danish legislation requiring that a minimum amount of share capital be paid up has not been denied either in the written observations or at the hearing. That does not, however, mean that the formation by that British company of a branch in Denmark is not covered by freedom of establishment for the purposes of Article 52 and 58 of the Treaty. The question of the application of those articles of the Treaty is different from the question whether or not a Member State may adopt measures in order to prevent attempts by certain of its nationals to evade domestic legislation by having recourse to the possibilities offered by the Treaty.

50. By contrast, the question whether aid is State aid within the meaning of the Treaty must be determined on the basis of objective elements, which must be appraised on the date on which the Commission takes its decision (see, to that effect, Joined Cases C‑182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 137, and Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-0000, paragraph 95). Accordingly, it is the appraisal of the situation carried out by the Commission on that date which is to be reviewed by the Community Courts ( Chronopost and La Poste v UFEX and Others , paragraph 144).

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).

33 In light of the foregoing, the answer to the first, second, third and sixth questions referred by the House of Lords must be that, on a proper construction of the expression "place where the harmful event occurred" in Article 5(3) of the Convention, the victim of a libel by a newspaper article distributed in several Contracting States 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 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. The fourth, fifth and seventh questions

58. In this connection, it is true that preventing possible tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112 and European Union law cannot be relied on for fraudulent or abusive ends (see, inter alia, Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraphs 68 and 71; Joined Cases C-80/11 and C-142/11 Mahagében and Dávid [2012] ECR, paragraph 41; and Bonik , paragraphs 35 and 36).

35. Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of Community law whose observance the Community judicature ensures (Case C-282/95 P Guérin automobiles v Commission [1997] ECR I-1503, paragraphs 36 and 37, and also Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 167 to 171).

171 Contrary to the appellants' assertion, it did not disregard the judgment in Baustahlgewebe, cited above, in paragraphs 20 and 21 of which the Court of Justice, having referred to the content of Article 6(1) of the ECHR, described as a general principle of Community law the right of all persons to a fair hearing and, in particular, the right to a hearing within a reasonable period of time.

19. In the absence of a definition in the Treaty of ‘movement of capital’ for the purposes of Article 56(1) EC, the Court has previously recognised the nomenclature which forms Annex I to Directive 88/361 as having indicative value, even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (later Articles 69 and 70(1) of the EC Treaty; articles repealed by the Treaty of Amsterdam), it being understood that, in accordance with the introduction to that annex, the list it contains is not exhaustive (see, inter alia, Case C‑513/03 van Hilten-van der Heijden [2006] ECR I‑1957, paragraph 39; Eckelkamp and Others , paragraph 38; Arens-Sikken , paragraph 29; and Block , paragraph 19). Gifts and endowments appear under heading XI, ‘Personal capital movements’, of Annex I to Directive 88/361 (Case C‑318/07 Persche [2009] ECR I‑359, paragraph 24).

57. So far as concerns judicial review of compliance with this principle, bearing in mind the wide discretion enjoyed by the Community legislature in matters concerning the common agricultural policy, the legality of a measure adopted in that field can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 14; Joined Cases C-133/93, C‑300/93 and C-362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraph 42; Jippes , paragraph 82; and IATA and ELFAA , paragraph 80).

42 The legality of a Community act cannot depend on retrospective considerations of its efficacy (judgment in Case 40/72 Schroeder v Germany [1973] ECR 125, point 14). Where the Community legislature is obliged to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question (judgment in Joined Cases C-267 to 285/88 Wuidart and Others v Laiterie Coopérative Eupenoise, a cooperative society, and Others [1990] ECR I-435, paragraph 14).

20 It is settled case-law that, even though, according to their wording, the provisions of the FEU Treaty on freedom of establishment are aimed at ensuring the benefit of national treatment in the host Member State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated in accordance with its legislation (judgment in Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 33 and the case-law cited).

17 In that context, the second paragraph of Article 95 of the Treaty is intended, more specifically, to prevent any form of indirect fiscal protectionism affecting imported products which, although not similar, within the meaning of the first paragraph of Article 95, to domestic products, nevertheless compete with some of them, even if only partially, indirectly or potentially (Case 356/85 Commission v Belgium [1987] ECR 3299, paragraphs 6 and 7).

7 AGAINST THAT BACKGROUND, THE SECOND PARAGRAPH OF ARTICLE 95 IS MORE SPECIFICALLY INTENDED TO PREVENT ANY FORM OF INDIRECT FISCAL PROTECTIONISM AFFECTING IMPORTED PRODUCTS WHICH, ALTHOUGH NOT SIMILAR, WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 95, TO DOMESTIC PRODUCTS, ARE NEVERTHELESS IN A COMPETITIVE RELATIONSHIP WITH SOME OF THEM, EVEN IF ONLY PARTIALLY, INDIRECTLY OR POTENTIALLY .

44 In that regard, the Court has already held that the fact that it is difficult to adduce the evidence necessary to rebut a presumption of actual exercise of decisive influence does not in itself mean that that presumption is in fact irrebuttable, especially where the entities against which the presumption operates are those best placed to seek that evidence within their own sphere of activity (judgment in Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 46 and the case-law cited).

24. A body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon ( Foster and Others , paragraph 20, and Case C-343/98 Collino and Chiappero [2000] ECR I-6659, paragraph 23).

20 It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon .

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).

24. It must also be observed that the EC Treaty does not define the term ‘movement of capital’. However, it is settled case-law that, inasmuch as Article 73b of the Treaty substantially reproduced the content of Article 1 of Directive 88/361, and even if the latter was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty were replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature relating to capital movements annexed thereto retains the same indicative value as before for the purposes of defining the term ‘movement of capital’ (see, inter alia, Case C-513/03 v an Hilten-van der Heijden [2006] ECR I-1957, paragraph 39, and Case C-452/04 Fidium Finanz [2006] ECR I-9521, paragraph 41).

41. As regards the notion of ‘capital movements’, there is no definition thereof in the Treaty. It is, however, settled case-law that, inasmuch as Article 56 EC essentially reproduces the contents of Article 1 of Directive 88/361, and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty, (Articles 67 to 73 of the EEC Treaty have been replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature in respect of ‘movements of capital’ annexed to that directive still has the same indicative value, for the purposes of defining the notion of capital movements (see to that effect, inter alia, Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 21; Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C‑540/99 Reisch and Others [2002] ECR I-2157, paragraph 30; and Case C‑513/03 Van Hilten-van der Heijden [2006] ECR I-1957, paragraph 39).

46. In those circumstances, it must be stated that the procedural system at issue in the main proceedings places at risk the attainment of the objective pursued by Directive 93/13. The imbalance between the procedural rights available to the consumer, on the one hand, and to the seller or supplier on the other hand, simply accentuates the imbalance existing between the parties to the agreement, already mentioned at paragraph 22 of this judgment, and which is also echoed in the context of an individual action involving a consumer and the seller or supplier who is his co-contractor (see, by way of analogy, Asociación de Consumidores Independientes de Castilla y León , EU:C:2013:800, paragraph 50).

44. It follows that, if the transaction at issue in the main proceedings is categorised as a ‘service contract’ within the meaning of Directive 2004/17, such a contract must, in principle, be concluded in accordance with the procedures laid down in Articles 31 and 32 thereof. On the other hand, under Article 18 of that directive, if that transaction is categorised as a service concession, the directive is not applicable to it. In such circumstances, the awarding of the concession remains subject to the fundamental rules of the Treaty, in general, and to the principles of equal treatment and of non-discrimination on the ground of nationality, and the concomitant obligation of transparency, in particular (see, to that effect, Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraphs 60 to 62; Case C‑231/03 Coname [2005] ECR I‑7287, paragraphs 16 to 19; Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraphs 46 to 49; and Case C‑324/07 Coditel Brabant [2008] ECR I‑0000, paragraph 25).

16. It must be remembered that the award of such a concession is not governed by any of the directives by which the Community legislature has regulated the field of public contracts. In the absence of any such legislation, the consequences in Community law of the award of such concessions must be examined in the light of primary law and, in particular, of the fundamental freedoms provided for by the Treaty.

21 IN THE CASE OF CERTAIN OTHER APPLICANTS THE FURTHER DAMAGE ALLEGED IS OF A DIFFERENT NATURE . TWO UNDERTAKINGS WERE FORCED TO CLOSE THEIR FACTORIES AND A THIRD HAD TO COMMENCE INSOLVENCY PROCEEDINGS . THE COUNCIL ARGUED THAT THE ORIGIN OF THE DIFFICULTIES EXPERIENCED BY THOSE UNDERTAKINGS IS TO BE FOUND IN THE CIRCUMSTANCES PECULIAR TO EACH OF THEM , SUCH AS THE OBSOLESCENCE OF THEIR PLANT AND MANAGERIAL OR FINANCIAL PROBLEM . THE DATA SUPPLIED BY THE PARTIES ON THAT QUESTION IN THE COURSE OF THE PROCEEDINGS ARE NOT SUCH AS TO ESTABLISH THE TRUE CAUSES OF THE FURTHER DAMAGE ALLEGED . HOWEVER , IT IS SUFFICIENT TO STATE THAT EVEN IF IT WERE ASSUMED THAT THE ABOLITION OF THE REFUNDS EXACERBATED THE DIFFICULTIES ENCOUNTERED BY THOSE APPLICANTS , THOSE DIFFICULTIES WOULD NOT BE A SUFFICIENTLY DIRECT CONSEQUENCE OF THE UNLAWFUL CONDUCT OF THE COUNCIL TO RENDER THE COMMUNITY LIABLE TO MAKE GOOD THE DAMAGE . IN THE FIELD OF NON-CONTRACTUAL LIABILITY OF PUBLIC AUTHORITIES FOR LEGISLATIVE MEASURES , THE PRINCIPLES COMMON TO THE LAWS OF THE MEMBER STATES TO WHICH THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY REFERS CANNOT BE RELIED ON TO DEDUCE AN OBLIGATION TO MAKE GOOD EVERY HARMFUL CONSEQUENCE , EVEN A REMOTE ONE , OF UNLAWFUL LEGISLATION .

16 Article 51 of the Treaty, which the regulation implements, provides for the coordination, not the harmonization, of the legislations of the Member States. Substantive and procedural differences between the social security systems of individual Member States, and hence in the rights of persons working there, are unaffected by that provision (see, in particular, Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie [1986] ECR 1, paragraph 20).

20 AS REGARDS THE DIFFERENCE IN TREATMENT BETWEEN WORKERS TO WHOM ARTICLE 73 ( 1 ) APPLIES AND WORKERS SUBJECT TO THE ARRANGEMENTS LAID DOWN IN ARTICLE 73 ( 2 ), IT MUST BE OBSERVED THAT ARTICLE 51 OF THE TREATY PROVIDES FOR THE COORDINATION , NOT THE HARMONIZATION , OF THE LEGISLATION OF THE MEMBER STATES . AS A RESULT , ARTICLE 51 LEAVES IN BEING DIFFERENCES BETWEEN THE MEMBER STATES ' SOCIAL SECURITY SYSTEMS AND , CONSEQUENTLY , IN THE RIGHTS OF PERSONS WORKING IN THE MEMBER STATES . IT FOLLOWS THAT SUBSTANTIVE AND PROCEDURAL DIFFERENCES BETWEEN THE SOCIAL SECURITY SYSTEMS OF INDIVIDUAL MEMBER STATES , AND HENCE IN THE RIGHTS OF PERSONS WORKING IN THE MEMBER STATES , ARE UNAFFECTED BY ARTICLE 51 OF THE TREATY .

91 As regards, first, the plea alleging insufficient reasoning for the contested decision, according to the case-law of the Court of Justice, decisions concerning the clearance of accounts do not require detailed reasons if the government concerned was closely involved in the process by which the decision came about and is therefore aware of the reason for which the Commission considers that it must not charge the sums in dispute to the EAGGF (Case C-50/94 Greece v Commission [1996] ECR I-3331, paragraph 9).