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103 Nevertheless, in accordance with the settled case-law of the Court subsequent to the judgment of 25 July 1991, Emmott (C‑208/90, EU:C:1991:333), the Court has acknowledged that a defaulting Member State may rely on the expiry of a limitation period as a defence against legal proceedings, even though by the date on which the actions in question were brought that Member State had not yet correctly transposed the directive in question, ruling that the solution established in the judgment of 25 July 1991, Emmott (C‑208/90, EU:C:1991:333) had been justified by the circumstances particular to that case, in which a time-bar had had the result of depriving the applicant in the main proceedings of any opportunity whatever to invoke her right under a directive (see, to that effect, judgments of 19 May 2011, Iaia and Others , C‑452/09, EU:C:2011:323, paragraph 19, and of 8 September 2011, Q-Beef and Bosschaert , C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 50 and the case-law cited).

19. The Court has, however, subsequently acknowledged that a defaulting Member State may rely on the expiry of a limitation period as a defence against legal proceedings, even though by the date on which the actions in question were brought that Member State had not yet correctly transposed the directive in question, ruling that the solution established in Emmott had been justified by the circumstances particular to that case, in which a time-bar had had the result of depriving the applicant in the main proceedings of any opportunity whatever to invoke her right to equal treatment under a directive (see Case C‑338/91 Steenhorst-Neerings [1993] ECR I‑5475; Case C‑410/92 Johnson [1994] ECR I‑5483; Fantask and Others , paragraphs 50 to 52; Case C‑30/02 Recheio – Cash & Carry [2004] ECR I‑6051; and Danske Slagterier , paragraphs 53 to 56).

27. It is true that, according to settled case-law, a directive cannot of itself impose obligations on an individual (see, inter alia, Case 152/84 Marshall [1986] ECR 723, paragraph 48; Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 108; Joined Case C‑387/02, C‑391/02 and C‑403/02 Berlucsoni and Others [2005] ECR I‑3565, paragraph 73; and Case C‑80/06 Carp [2007] ECR I‑0000, paragraph 20).

30. On the other hand, it is apparent from paragraphs 56 to 63 of the judgment in Italy v Council , in which the Court examined the plea alleging lack or inadequacy of a statement of the reasons on which Regulation No 1361/98 was based in the light of Article 190 of the EC Treaty (now Article 253 EC), that that reasoning was held to be in keeping with the requirements of that provision. Indeed, in paragraph 63 of that judgment, the Court found that, in the context of the set of rules in issue and the way in which the market concerned had developed, the statement of reasons given in Regulation No 1361/98 for the classification of Italy as a non-deficit area for the marketing year 1998/99, whilst very succinct, sufficiently fulfilled the requirements laid down in the Court’s case-law regarding the statement of reasons.

62 In addition, neither the Italian Government nor the beet producers could have been unaware of the way in which the sugar market had developed during the course of the 1990s. As is clear from paragraph 67 of the judgment of 6 July 2000, those developments were characterised, in particular, by a slow but constant fall in consumption.

32. In that regard, the Court has pointed out that, in order to determine whether treatment which is equally effective for the patient can be obtained in due time in the Member State of residence, the competent institution is required to have regard to all the circumstances of each specific case and to take due account not only of the patient’s medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient’s disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history ( Inizan , EU:C:2003:578, paragraph 46; Watts , EU:C:2006:325, paragraph 62, and Elchinov , EU:C:2010:581, paragraph 66).

64. As regards the fourth part of the plea, the Court of First Instance correctly interpreted the judgment in Spain v Commission , paragraphs 12 to 20, when it stated that the effect of that judgment is that a decision to initiate the procedure for examining State aid produces legal effects as referred to in Article 230 EC. Specific legal consequences flow from the assessment and classification of the aid mentioned and from the choice of procedure which follows from that. By contrast, the mere fact that, by the contested decisions, the Commission made a choice as to the procedure to be undertaken against the appellants and thus excluded other procedures cannot, in itself, be a legal effect for the purposes of that article.

19 In this case, it is clear from the facts that the difference between the views of the Spanish Government and the Commission concerns the categorization of the aid at issue. The Commission decided to treat aid as new aid which the Spanish Government regarded as existing aid because it had been granted after the Spanish authorities had notified it to the Commission and given notice to the Commission in accordance with the judgment in Lorenz.

44 Moreover, it is clear from the case-law of the Court (Haahr Petroleum, cited above, paragraph 53, and Texaco and Olieselskabet Danmark, cited above, paragraph 49) that the solution adopted in Emmott is not applicable to claims for repayment not based on the direct effect of a directive. Even though the Court, in Aprile I, gave a ruling as to the scope of Directive 87/53, it is clear from the documents now before the Court that the incompatibility of the charges at issue with Community law derives not from a failure to implement, or incorrect transposition of, that directive but from infringement of the provisions of the Treaty or of other directly applicable Community instruments.

81. It should be noted at the outset that, according to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would be to authorise it to bring before the Court of Justice, the appellate jurisdiction of which is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to a review of the findings of law on the pleas argued before the General Court (see, to that effect, Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraphs 58 and 59; Case C‑266/97 P VBA v VGB and Others [2000] ECR I‑2135, paragraph 79; Joined Cases C-456/01 P and C‑457/01 P Henkel v OHIM [2004] ECR I-5089, paragraph 50; and Case C‑16/06 P Les Éditions Albert René v OHIM [2008] ECR I-10053, paragraph 126).

50. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in an appeal is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court’s jurisdiction is thus confined to review of the findings of law on the pleas argued before the Court of First Instance (see the judgment in Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and the order of 28 June 2001 in Case C-352/99 P Eridania and Others v Council [2001] ECR I-5037, paragraph 53).

114 The legal profession is not concentrated to any significant degree. It is highly heterogenous and is characterised by a high degree of internal competition. In the absence of sufficient structural links between them, members of the Bar cannot be regarded as occupying a collective dominant position for the purposes of Article 86 of the Treaty (see, to that effect, Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 227, and Joined Cases C-395/96 P and C-396/96 P Compagnie maritime belge transports and Others v Commission [2000] ECR I-1365, paragraphs 36 and 42). Furthermore, as is clear from the documents before the Court, members of the Bar account for only 60% of turnover in the legal services sector in the Netherlands, a market share which, having regard to the large number of law firms, cannot of itself constitute conclusive evidence of the existence of a collective dominant position on the part of those undertakings (see, to that effect, France and Others v Commission, paragraph 226, and Compagnie maritime belge, paragraph 42).

428. In those judgments, the Court of First Instance first of all correctly observed that, according to a consistent line of decisions of the Court of Justice, provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. The Court of First Instance also correctly held that, in doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (see, to that effect, in particular, Musique Diffusion française and Others v Commission , paragraph 21).

21 THAT PART OF THE SUBMISSION CANNOT BE UPHELD EITHER . IN ITS STATEMENT OF OBJECTIONS , THE COMMISSION EXPRESSLY STATED THAT IT WOULD CONSIDER WHETHER IT WAS APPROPRIATE TO IMPOSE FINES ON THE UNDERTAKINGS AND IT ALSO INDICATED THE MAIN FACTUAL AND LEGAL CRITERIA CAPABLE OF ATTRACTING A FINE , SUCH AS THE GRAVITY AND THE DURATION OF THE ALLEGED INFRINGEMENT AND WHETHER THAT INFRINGEMENT WAS COMMITTED ' ' INTENTIONALLY OR NEGLIGENTLY ' ' . IN DOING SO THE COMMISSION FULFILLED ITS OBLIGATIONS ON THIS POINT INASMUCH AS IT GAVE THE UNDERTAKINGS THE NECESSARY DETAILS TO ENABLE THEM TO DEFEND THEMSELVES NOT MERELY AGAINST THE FINDING OF AN INFRINGEMENT BUT ALSO AGAINST THE IMPOSITION OF FINES . TO GIVE INDICATIONS AS REGARDS THE LEVEL OF THE FINES ENVISAGED , BEFORE THE UNDERTAKINGS HAVE BEEN INVITED TO SUBMIT THEIR OBSERVATIONS ON THE ALLEGATIONS AGAINST THEM , WOULD BE TO ANTICIPATE THE COMMISSION ' S DECISION AND WOULD THUS BE INAPPROPRIATE .

57. More specifically, the Court has held that that could be the position in the case of products with visual similarities and sales names which are phonetically and visually alike ( Consorzio per la tutela del formaggio Gorgonzola , paragraph 27, and Commission v Germany , paragraph 46).

34 The reason for this mitigation of the burden of proof on the Commission is that it is the State which is best placed to collect and check the data required for the clearance of EAGGF accounts, and which is consequently required to adduce the most detailed and comprehensive evidence that its figures are accurate and, if appropriate, that the Commission's calculations are incorrect (Netherlands v Commission, cited above, paragraph 17; Case C-59/97 Italy v Commission [1999] ECR I-1683, paragraph 55). In the event of a dispute, it is for the Commission to prove that the rules of the common organisation of the agricultural markets have been infringed and, once it has established such an infringement, the Member State concerned must then, if appropriate, demonstrate that the Commission committed an error as to the financial consequences to be inferred from that infringement (Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 19, and Netherlands v Commission, cited above, paragraph 18).

18 It follows from the foregoing that in the event of a dispute it is for the Commission to prove that the rules of the common organization of the agricultural markets have been infringed and, once it establishes such an infringement, the Member State concerned must then, if appropriate, demonstrate that the Commission committed an error as to the financial consequences to be drawn from it (see Case C-281/91 Italy v Commission [1991] ECR I-347, paragraph 19).

42. The Court, in holding in paragraph 76 of the judgment in Bristol-Myers Squibb and Others that defective, poor quality or untidy packaging could damage the trade mark’s reputation, merely referred to certain cases in which inappropriate presentation of the repackaged product is liable to damage the reputation of the trade mark and of its proprietor.

30. Unless it is objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage ( Meints , paragraph 45).

45 Unless it is objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage (O'Flynn, cited above, paragraph 20).

33. Moreover, the requirement that the cost should be ‘not prohibitively expensive’ pertains, in environmental matters, to the observance of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, and to the principle of effectiveness, in accordance with which detailed procedural rules governing actions for safeguarding an individual’s rights under European Union law must not make it in practice impossible or excessively difficult to exercise rights conferred by European Union law (see, inter alia, Case C‑240/09 Lesoochranárske zoskupenie VLK [2011] ECR I‑1255, paragraph 48).

36. Such a procedure may, in particular by reason of the period laid down for issuing the notification, impede the planned posting and, consequently, the provision of services by the employer of the workers who are to be posted, in particular where the services to be provided necessitate a certain speed of action (see, to that effect, Commission v Germany , paragraph 35, and Commission v Austria , paragraph 39).

35. While it is true, as the German Government submits, that the administrative and financial charges involved in the prior check as practised by the German authorities are not of the order of those considered by the Court in Commission v Luxembourg , such a procedure may make it more difficult, or even impossible, to exercise the freedom to provide services through posted workers who are nationals of non‑member States, in particular where the services to be provided necessitate a certain speed of action.

25 The fact that an activity promoting physical and mental well-being is practised competitively does not lead to a different conclusion. In fact, the Court has ruled that Article 132(1)(m) of Directive 2006/112 does not require, for it to be applicable, that the sporting activity be practised at a particular level, for example, at a professional level, or that the sporting activity at issue be practised in a particular way, namely in a regular or organised manner or in order to participate in sports competitions (judgments of 21 February 2013, Žamberk, C‑18/12, EU:C:2013:95, paragraph 22, and of 19 December 2013, Bridport and West Dorset Golf Club, C‑495/12, EU:C:2013:861, paragraph 19). In that respect, it must also be noted that the competitive nature of an activity cannot, per se, be sufficient to establish its classification as a ‘sport’, failing any not negligible physical element.

29 In that regard, it is necessary to state at the outset that, in accordance with settled case-law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the 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 submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 76 and the case-law cited).

76. In that regard, it is necessary to state at the outset that, in accordance with settled case-law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the 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 submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (Case C-145/03 Keller [2005] ECR I-2529, paragraph 33; Case C-119/05 Lucchini [2007] ECR I-6199, paragraph 43; and Case C-11/07 Eckelkamp and Others [2008] ECR I-6845, paragraphs 27 and 32).

36 Second, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, in particular, Case C-60/96 Commission v France [1997] ECR I-3827, paragraph 15).

70. À cet égard, il convient de rappeler que, selon une jurisprudence constante de la Cour, les dispositions du traité FUE relatives à la libre prestation des services et à la liberté d’établissement ne sont pas applicables à des activités dont l’ensemble des éléments pertinents se cantonnent à l’intérieur d’un seul État membre (voir, en ce sens, arrêts du 16 janvier 1997, USSL n o  47 di Biella, C‑134/95, Rec. p. I‑195, point 19; du 22 décembre 2010, Omalet, C‑245/09, Rec. p. I‑13771, point 12, ainsi que du 20 juin 2013, Impacto Azul, C‑186/12, point 19).

19. According to settled case-law, the provisions of the TFEU on freedom of establishment do not apply to a situation, all the elements of which are confined within one single Member State (see, to that effect, Joined Cases C‑54/88, C‑91/88 and C‑14/89 Nino and Others [1990] ECR I‑3537, paragraph 11; Case C‑134/94 Esso Española [1995] ECR I‑4223, paragraph 17; and Case C‑389/05 Commission v France [2008] ECR I‑5397, paragraph 49).

18 As the Court has already made clear, the last-mentioned condition is of particular importance where the directive in question is intended to accord rights to nationals of other Member States (Case C-365/93, cited above, paragraph 9). That is the position in the present case, it being one of the aims of the Directive, according to the sixth recital in its preamble, to safeguard the citizen in his role as consumer when acquiring goods and services under contracts which are governed by the laws of Member States other than his own.

45 Finally, concerning, in the third place, the arguments put forward by the appellant in the third and fourth parts of this ground of appeal, it must be stated that, by those arguments, the appellant, whilst purporting to claim that the General Court made errors of law, is essentially seeking to challenge the assessment of the evidence made by the General Court. The latter’s assessment of the evidential value of an element of fact may not, as a rule, be subject to review by the Court of Justice in appeal proceedings. As is apparent from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court therefore has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted (see, inter alia, judgment of 2 October 2003, Salzgitter v Commission, C‑182/99 P, EU:C:2003:526, paragraph 43 and the case-law cited).

43. In principle, the assessment by the Court of First Instance of the probative value of a document may not be subjected to review by the Court in appeal proceedings. As is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the Court of Justice, an appeal lies on a point of law only. The Court of First Instance therefore has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted (see, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraphs 49 and 66; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 194; and Case C-312/00 P Commission v Camar and Tico [2002] ECR I-11355, paragraph 69).

43 In that connection, the Court has held that provisions of a Member State which prohibit the import, marketing or holding in stock, with a view to selling, of radio equipment that has not undergone national type-approval, such as the provisions at issue in the main proceedings, constitute a measure equivalent to a quantitative restriction within the meaning of Article 28 EC (see Case C-80/92 Commission v Belgium [1994] ECR I-1019, paragraph 21).

40. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the corresponding legal bases (see, inter alia , Case C-336/00 Huber [2002] ECR I-7699, paragraph 31; Case C-281/01 Commission v Council [2002] ECR I-2049, paragraph 35, and Opinion 2/00 [2001] ECR 1-9713, paragraph 23).

35. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the corresponding legal bases (see Case C-300/89 Commission v Council , cited above, paragraphs 13 and 17, Parliament v Council , cited above, paragraphs 38 and 43, Case C-336/00 Huber [2002] ECR I-7699, paragraph 31, and Opinion 2/00, cited above, paragraph 23).

46. In that judgment, the Court set out the settled case-law, according to which both the notes which head the chapters of the CN and the Explanatory Notes to the WCO Nomenclature are important means of ensuring the uniform application of the common customs tariff and, as such, may be regarded as useful aids to its interpretation (see Siemens Nixdorf , C‑11/93, EU:C:1994:206, paragraph 12, and Kamino International Logistics EU:C:2009:105, paragraph 32).

50. The measures which the Member States may adopt under Article 273 of the VAT Directive to ensure the correct collection of VAT and to prevent evasion must not go further than is necessary to attain those objectives and must not undermine the neutrality of VAT (see Case C‑385/09 Nidera Handelscompagnie [2010] ECR I‑0000, paragraph 49).

49. In addition, the Court has previously held that the measures which the Member States may adopt under Article 273 of Directive 2006/112 in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than is necessary to attain such objectives and must not undermine the neutrality of VAT (see, by analogy, Case C‑146/05 Collée [2007] ECR I-7861, paragraph 26 and case-law cited).

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).

50 As is apparent from the Court’s settled case-law, an international agreement concluded by the European Union constitutes an act of the institutions of the European Union within the meaning of point (b) of the first paragraph of Article 267 TFEU and the provisions of the agreement form an integral part of the legal order of the European Union, from the time it enters into force, with the result that the Court has jurisdiction to give a preliminary ruling on the interpretation of such an agreement (see, inter alia, judgment of 30 April 1974, Haegeman, 181/73, EU:C:1974:41, paragraphs 3 to 6, and of 4 May 2010, TNT Express Nederland, C‑533/08, EU:C:2010:243, paragraph 60 and the case-law cited).

5 THE PROVISIONS OF THE AGREEMENT, FROM THE COMING INTO FORCE THEREOF, FORM AN INTEGRAL PART OF COMMUNITY LAW .

34 Since the waste gases were burned by electricity producers, the corresponding emissions were not taken into account for determining the maximum annual amount of allowances (see, in that regard, judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 74).

29. Furthermore, the Court has already held that where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I-7063, paragraphs 27 to 49; Manninen , paragraphs 29 to 55, and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 55).

47. Concerning, secondly, the definitive tax at the rate of 25%, it should be noted that this is deducted directly at source by companies established in Austria. However, as the Advocate General points out in paragraphs 33 and 34 of his Opinion, tax that is definitive in nature does not necessarily presuppose a tax at source. Thus, Article 97(2) of the EStG provides that, in cases where deduction at source is not possible, the definitive tax may be paid by ‘voluntary payment, at the payment counter, of an amount corresponding to the tax on revenue from capital’. In respect of revenue from companies established in other Member States, therefore, a procedure similar to ‘voluntary payment’ to the tax administration could be instituted.

10. À cet égard, il convient de rappeler que, selon une jurisprudence constante de la Cour, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 11 octobre 2001, Commission/Autriche, C‑111/00, Rec. p. I-7555, point 13; du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15, et du 17 février 2011, Commission/Belgique, C‑321/10, point 11).

40 In that regard, it must be noted that, according to the case-law of the Court, in order to assess the condition concerning the performance of the essential part of the activity, the national courts must take into account all the facts of the case, both qualitative and quantitative (see, to that effect, judgment of 11 May 2006, Carbotermo and Consorzio Alisei, C‑340/04, EU:C:2006:308, paragraphs 63 and 64).

64. In order to determine if that is the case, the competent court must take into account all the facts of the case, both qualitative and quantitative.

37. Consequently, obesity cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination (see, by analogy, judgment in Chacón Navas , EU:C:2006:456, paragraph 57).

26. According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision (see, inter alia, Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107; Cook v Commission , paragraph 20; Matra v Commission , paragraph 14; Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I‑10737, paragraph 33; and Joined Cases C‑75/05 P and C‑80/05 P Germany and Others v Kronofrance [2008] ECR I‑0000, paragraph 36).

36. According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision (see, among others, Plaumann v Commission , at 107; Case C‑198/91 Cook v Commission [1993] ECR I‑2487, paragraph 20; Case C‑225/91 Matra v Commission [1993] ECR I‑3203, paragraph 14; and Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I‑10737, paragraph 33).

122. Thus, by dint of those two criteria, the selection process favours pharmacists who have pursued their activities on part of the national territory. Obviously, such a criterion can be more easily met by national pharmacists, who more often pursue their economic activities on the national territory, than by pharmacists who are nationals of other Member States, who more frequently pursue those activities in another Member State (see, by analogy, Hartmann , paragraph 31).

45 If that attempt at settlement is unsuccessful, the function of the reasoned opinion is to define the subject-matter of the dispute. The Commission is not, however, empowered to determine conclusively, by reasoned opinions formulated pursuant to Article 169, the rights and duties of a Member State or to afford that State guarantees concerning the compatibility of a given line of conduct with the Treaty. According to the system embodied in Articles 169 to 171 of the Treaty, the rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court (see, to that effect, Essevi and Salengo, cited above, paragraphs 15 and 16).

15 THE PURPOSE OF THAT PRELIMINARY PROCEDURE WHICH COMES WITHIN THE GENERAL SCOPE OF THE SUPERVISORY TASK ENTRUSTED TO THE COMMISSION UNDER THE FIRST INDENT OF ARTICLE 155 IS , IN THE FIRST PLACE , TO GIVE THE MEMBER STATE AN OPPORTUNITY TO JUSTIFY ITS POSITION AND , AS THE CASE MAY BE , TO ENABLE THE COMMISSION TO PERSUADE THE MEMBER STATE TO COMPLY OF ITS OWN ACCORD WITH THE REQUIREMENTS OF THE TREATY . IF THIS ATTEMPT TO REACH A SETTLEMENT IS UNSUCCESSFUL , THE FUNCTION OF THE REASONED OPINION IS TO DEFINE THE SUBJECT-MATTER OF THE DISPUTE .

88. In that regard, it is apparent from all the abovementioned provisions that the interest of the service may be a legitimate objective that can be taken into consideration. In particular, as stated in paragraph 82 above, Article 1(d) of the Staff Regulations authorises limitations on the principles of non-discrimination and proportionality. Those interests of the service must however be objectively justified and the required level of knowledge of languages must be proportionate to the genuine needs of the service (see, to that effect, Case 79/74 Küster v Parliament [1975] ECR 725, paragraphs 16 and 20, and Case 22/75 Küster v Parliament [1975] ECR 1267, paragraphs 13 and 17).

54. Aid of a relatively small amount is liable to affect competition and trade between Member States where there is strong competition in the sector in which the undertakings which receive it operate (see Case 259/85 France v Commission [1987] ECR 4393, paragraph 24; Case C-303/88 Italy v Commission [1991] ECR I‑1433, paragraph 27, and Case C‑351/98 Spain v Commission [2002] ECR I‑8031, paragraph 63).

24 AS THE COMMISSION STRESSED IN ITS DECISION, THE PROPOSED AID WOULD ENABLE THE UNDERTAKINGS BENEFITING FROM IT TO REDUCE THEIR INVESTMENT COSTS, THEREBY STRENGTHENING THEIR POSITION AS AGAINST THAT OF OTHER UNDERTAKINGS COMPETING WITH THEM IN THE COMMUNITY . IN VIEW OF THE INFORMATION CONTAINED IN THE DECISION CONCERNING THE SITUATION OF THE INDUSTRIES IN QUESTION IN THE COMMUNITY IN GENERAL AND FRANCE IN PARTICULAR, AND CONCERNING INTRA-COMMUNITY TRADE, AND BY VIRTUE OF THE FACT - EMPHASIZED BY THE COMMISSION IN THE PROCEEDINGS BEFORE THE COURT - THAT THE PROFIT MARGINS IN THAT SECTOR ARE ALWAYS VERY NARROW, THE COMMISSION DID NOT EXCEED THE LIMITS OF ITS DISCRETION IN TAKING THE VIEW THAT EVEN RELATIVELY LITTLE AID WOULD ADVERSELY AFFECT TRADING CONDITIONS TO AN EXTENT CONTRARY TO THE COMMON INTEREST .

26 First, the consistent case-law of the Court shows that a directive may not of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (see, in particular, Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 48; Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 6; Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 20). According to that case-law, however, when applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty.

49. It is true that the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (see, inter alia, Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 26, and Kücükdeveci , paragraph 47 and the case‑law cited).

26 HOWEVER , THE MEMBER STATES ' OBLIGATION ARISING FROM A DIRECTIVE TO ACHIEVE THE RESULT ENVISAGED BY THE DIRECTIVE AND THEIR DUTY UNDER ARTICLE 5 OF THE TREATY TO TAKE ALL APPROPRIATE MEASURES , WHETHER GENERAL OR PARTICULAR , TO ENSURE THE FULFILMENT OF THAT OBLIGATION , IS BINDING ON ALL THE AUTHORITIES OF MEMBER STATES INCLUDING , FOR MATTERS WITHIN THEIR JURISDICTION , THE COURTS . IT FOLLOWS THAT , IN APPLYING THE NATIONAL LAW AND IN PARTICULAR THE PROVISIONS OF A NATIONAL LAW SPECIFICALLY INTRODUCED IN ORDER TO IMPLEMENT DIRECTIVE NO 76/207 , NATIONAL COURTS ARE REQUIRED TO INTERPRET THEIR NATIONAL LAW IN THE LIGHT OF THE WORDING AND THE PURPOSE OF THE DIRECTIVE IN ORDER TO ACHIEVE THE RESULT REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 189 .

34. As regards, first of all, the need to safeguard a balanced allocation of the power to impose taxes between the Member States, it should be recalled that this is a legitimate objective recognised by the Court, which may make it necessary to apply to the economic activities of companies established in one of those Member States only the tax rules of that State in respect of both profits and losses (judgment in K , C‑322/11, EU:C:2013:716, paragraph 50 and the case-law cited).

37. As regards, first, the EU competition rules, although it is true that, in themselves, Articles 101 TFEU and 102 TFEU are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those provisions, read in conjunction with Article 4(3) TEU, which lays down a duty to cooperate, none the less require Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see Case 13/77 GB‑Inno-BM [1977] ECR I‑2115, paragraph 31; Case C‑198/01 CIF [2003] ECR I‑8055, paragraph 45 and the case-law cited; and Case C‑338/09 Yellow Cab Verkehrsbetrieb [2010] ECR I‑13927, paragraph 25).

25. It should be noted, in that regard, that, although it is true that Articles 101 TFEU and 102 TFEU are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those articles, read in conjunction with Article 4(3) TEU, which lays down a duty to cooperate, none the less require Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see Case C‑198/01 CIF [2003] ECR I‑8055, paragraph 45 and the case‑law cited, and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 46).

26 It is also clear from Case 13/77 GB-Inno-BM [1977] ECR 2155, paragraph 64, that, in relation to the machinery for the taxation of tobacco, the expression observance of imposed prices must be understood as referring to a price which, once determined by the manufacturer or the importer and approved by the public authorities, is binding as a maximum price and must be observed as such at every stage of the distribution chain until it is sold to the consumer. That price-fixing machinery performs the function of ensuring that the integrity of tax revenue is not undermined by the exceeding of imposed prices.

23 Such a difference in treatment is not justified by the need to preserve the cohesion of a tax system nor by the effectiveness of fiscal supervision, which, in the judgments in, respectively, Bachmann (Case C-204/90 [1992] ECR I-249) and Futura Participations and Singer (Case C-250/95 [1997] ECR I-2471), mentioned by the referring court, have been recognised as capable of justifying the regulations and thus restricting the fundamental freedoms guaranteed by the Treaty.

20 It should be noted in that regard that Article 8(1) of the Directive imposes no obligation on the tax authorities of Member States to collaborate where their laws or administrative practices prevent the competent authorities from carrying out enquiries or from collecting or using information for those States' own purposes. However, the inability to request such collaboration cannot justify the non-deductibility of insurance contributions. There is nothing to prevent the tax authorities concerned from demanding from the person involved such proof as they consider necessary and, where appropriate, from refusing to allow deduction where such proof is not forthcoming.

22. Concerning, second, the applicability of Regulation No 1408/71 to the CSG and the CRDS, the Court has held that those contributions fall within the scope of that regulation. The Court essentially found that it could not agree with the proposition that, since the CSG and the CRDS are really to be categorised as taxes, they fall outside the scope of the regulation. It added that the fact that a levy is categorised as a tax under national legislation does not mean that, as regards that regulation, that same levy cannot be regarded as falling within its scope (see, to that effect, Case C‑34/98 Commission v France [2000] ECR I‑995, paragraphs 33 and 34, and Case C‑169/98 Commission v France [2000] ECR I‑1049, paragraphs 31 and 32). Moreover, it should be noted that the question referred by the national court assumes that the contributions at issue fall within the scope of Regulation No 1408/71.

35. The Court has recognised that it may be legitimate for a Member State, in order to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State, to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State, and if a risk exists of such an unreasonable burden, theoretically, similar considerations may apply as regards the award by a Member State of education or training grants to students wishing to study in other Member States (Case C‑209/03 Bidar [2005] ECR I‑2119, paragraphs 56 and 57; Morgan and Bucher , paragraphs 43 and 44; and Prinz and Seeberger , paragraph 36).

43. It is true that the Court has recognised that it may be legitimate for a Member State, in order to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State, to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State (Case C‑209/03 Bidar [2005] ECR I‑2119, paragraphs 56 and 57).

47 In a field to which TRIPs applies and in respect of which the Community has already legislated, as is the case with the field of trade marks, it follows from the judgment in Hermès, in particular paragraph 28 thereof, that the judicial authorities of the Member States are required by virtue of Community law, when called upon to apply national rules with a view to ordering provisional measures for the protection of rights falling within such a field, to do so as far as possible in the light of the wording and purpose of Article 50 of TRIPs.

77. Furthermore, it is for the Member State which has introduced such a differentiation between undertakings to show that it is actually justified by the nature and general scheme of the system in question (see Case C-159/01 Netherlands v Commission , paragraph 43).

43. It is for the Member State which has introduced such a differentiation between undertakings in relation to charges to show that it is actually justified by the nature and general scheme of the system in question.

32 Moreover, according to the settled case-law of the Court, restrictions on the freedom to provide services deriving from national measures which apply without distinction are acceptable only if those measures are justified by overriding reasons relating to the public interest and comply with the principle of proportionality, that is to say are suitable for securing the attainment of the objective which they pursue and do not go beyond what is strictly necessary in order to attain it (to that effect, see in particular Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37, and Case C-67/98 Zenatti [1999] ECR I-7289, paragraph 29).

40. For the purpose of responding to the present question, it must be recalled that, according to well-established case-law, Articles 5 to 7 of the Directive embody a complete harmonisation of the rules relating to the rights conferred by a trade mark and accordingly define the rights of proprietors of trade marks in the Community (Case C‑355/96 Silhouette International Schmied [1998] ECR I‑4799, paragraphs 25 and 29, and Joined Cases C‑414/99 to C‑416/99 Zino Davidoff and Levi Strauss [2001] ECR I‑8691, paragraph 39).

29 Even if Article 100a of the Treaty were to be construed in the sense argued for by the Swedish Government, the fact remains that Article 7, as has been pointed out in this judgment, is not intended to regulate relations between Member States and non-member countries but to define the rights of proprietors of trade marks in the Community.

51. With regard to Union citizens who have been lawfully resident in another Member State for a continuous period of five years, those provisions provided merely for the issue, upon application, of a document attesting to the permanence of their residence, without requiring that formality. Such a document has only declaratory and probative force but does not give rise to any right (see, to that effect, Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraph 53).

54. It must be stated at the outset that, according to settled case-law, it is clear from the Treaty context in which Article 211 EC must be placed and also from practical requirements that the concept of implementation must be given a wide interpretation. Since only the Commission is in a position to keep track of agricultural market trends and to act quickly when necessary, the Council may confer on it wide powers in that sphere. Consequently, the limits of those powers must be determined by reference amongst other things to the essential general aims of the market organisation (see Case C-478/93 Netherlands v Commission [1995] ECR I-3081, paragraph 30, and the case-law cited). Thus, the Court has held that, in matters relating to agriculture, the Commission is authorised to adopt all the implementing measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council (see, in particular, Case 121/83 Zuckerfabrik Franken [1984] ECR 2039, paragraph 13; Netherlands v Commission , cited above, paragraph 31, and Case C-356/97 Molkereigenossenschaft Wiedergeltingen [2000] ECR I-5461, paragraph 24).

30 The Court has consistently held that it follows from the Treaty context in which Article 155 must be placed and also from practical requirements that the concept of implementation must be given a wide interpretation. Since only the Commission is in a position to keep track of agricultural market trends and to act quickly when necessary, the Council may confer on it wide powers in that sphere. Consequently, the limits of those powers must be determined by reference amongst other things to the essential general aims of the market organization (see Case 22/88 Vreugdenhil and Another v Minister van Landbouw en Visserij [1989] ECR 2049, paragraph 16 and the cases cited therein).

50. It is therefore not the purpose of the second indent of the second subparagraph of Article 8(2) of Regulation No 2372/95 automatically to deprive exporters of the refunds provided for under the Community rules or, in a case such as that before the national court, of the securities provided at the time of sale of the cereals held by the intervention agencies, where the exporters, despite having made every effort required of them, have been prevented, as a result of circumstances beyond their control, from producing the requisite documents within the 12-month period (Germany v Commission , cited above, paragraph 148).

33 The Court also pointed out in the judgment in Case 125/79 Denilauler v Couchet Frères [1980] ECR 1553, at paragraphs 15 and 16, that an analysis of the function attributed under the general scheme of the Convention to Article 24 leads to the conclusion that, where such types of measures are concerned, special rules were contemplated so as to take account of the particular care and detailed knowledge of the actual circumstances required by the granting of this type of measure as well as the determination of procedures and conditions intended to guarantee the provisional and protective character of such measures.

15 AN ANALYSIS OF THE FUNCTION ATTRIBUTED UNDER THE GENERAL SCHEME OF THE CONVENTION TO ARTICLE 24 , WHICH IS SPECIFICALLY DEVOTED TO PROVISIONAL AND PROTECTIVE MEASURES , LEADS , MOREOVER , TO THE CONCLUSION THAT , WHERE THESE TYPES OF MEASURES ARE CONCERNED , SPECIAL RULES WERE CONTEMPLATED . WHILST IT IS TRUE THAT PROCEDURES OF THE TYPE IN QUESTION AUTHORIZING PROVISIONAL AND PROTECTIVE MEASURES MAY BE FOUND IN THE LEGAL SYSTEM OF ALL THE CONTRACTING STATES AND MAY BE REGARDED , WHERE CERTAIN CONDITIONS ARE FULFILLED , AS NOT INFRINGING THE RIGHTS OF THE DEFENCE , IT SHOULD HOWEVER BE EMPHASIZED THAT THE GRANTING OF THIS TYPE OF MEASURE REQUIRES PARTICULAR CARE ON THE PART OF THE COURT AND DETAILED KNOWLEDGE OF THE ACTUAL CIRCUMSTANCES IN WHICH THE MEASURE IS TO TAKE EFFECT . DEPENDING ON EACH CASE AND COMMERCIAL PRACTICES IN PARTICULAR THE COURT MUST BE ABLE TO PLACE A TIME-LIMIT ON ITS ORDER OR , AS REGARDS THE NATURE OF THE ASSETS OR GOODS SUBJECT TO THE MEASURES CONTEMPLATED , REQUIRE BANK GUARANTEES OR NOMINATE A SEQUESTRATOR AND GENERALLY MAKE ITS AUTHORIZATION SUBJECT TO ALL CONDITIONS GUARANTEEING THE PROVISIONAL OR PROTECTIVE CHARACTER OF THE MEASURE ORDERED .

40 In that regard, the Court has already held that the use in Article 14 of the Association Agreement of the verb ‘to be guided by’ indicates that the contracting parties are not obliged to apply the provisions of the Treaty on freedom to provide services or indeed those adopted for the implementation of those provisions but simply to consider them as a source of guidance for the measures to be adopted in order to implement the objectives laid down in that agreement (judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 45).

20 Accordingly, it should be noted that Directive 2006/114 carries out an exhaustive harmonisation of the conditions under which comparative advertising in Member States might be permitted and that such harmonisation implies by its nature that the lawfulness of comparative advertising throughout the European Union is to be assessed solely in the light of the criteria laid down by the European Union legislature (judgments of 8 April 2003, Pippig Augenoptik, C‑44/01, EU:C:2003:205, paragraph 44, and of 18 November 2010, Lidl, C‑159/09, EU:C:2010:696, paragraph 22).

22. It should also be noted that Directive 84/450 carried out an exhaustive harmonisation of the conditions under which comparative advertising in Member States might be permitted and that such a harmonisation implies by its nature that the lawfulness of comparative advertising throughout the European Union is to be assessed solely in the light of the criteria laid down by the European Union legislature (see Case C‑44/01 Pippig Augenoptik [2003] ECR I‑3095, paragraph 44).

119. It must be observed that, according to settled case-law, Article 87(1) EC requires that it be determined whether, under a particular statutory scheme, a State measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by the system in question, are in a comparable legal and factual situation. If so, the measure concerned fulfils the condition of selectivity which is a defining characteristic of the concept of State aid as set out by that provision (see Case C-172/03 Heiser [2005] ECR I-1627, paragraph 40, and the case-law cited there).

33. However, in the event that it cannot be established that the product to be imported and the reference product are identical, the authorities of the importing Member State may authorise the importation of the former product only if the conditions laid down in Directive 91/414 are complied with or prohibit its being placed on the market and used (see, to that effect, judgment in Commission v France , EU:C:2008:104, paragraph 36 and the case-law cited).

36. However, a plant protection product introduced into the territory of a Member State as a parallel import cannot, automatically or absolutely and unconditionally, have the benefit of a marketing authorisation issued to a plant protection product already on the market of that State. If the plant protection product cannot be regarded as having already been authorised in the Member State of importation, that State must issue a marketing authorisation according to the conditions laid down by Directive 91/414 or prohibit its being placed on the market and used (see, to that effect, British Agrochemicals Association , paragraph 37, and Escalier and Bonnarel , paragraphs 30 and 31).

27 Although that judgment concerned a decision which, unlike the OCT Decision which is addressed to all the Member States, was addressed to a single Member State, the Italian Government's argument that paragraph 32 of the judgment in Case C-209/94 P Buralux and Others v Council [1996] ECR I-615 rules out the application in the present case of the Court's reasoning in Piraiki-Patraiki cannot be accepted.

16 However, in providing through Article 93 for aid to be kept under constant review and supervised by the Commission, the intention of the Treaty is that the finding that an aid may be incompatible with the common market is to be made, subject to review by the Court, by means of an appropriate procedure which it is the Commission's responsibility to set in motion (see Case C-354/90 Fédération National du Commerce Extérieur des Produits Alimentaires et Syndicat National des Négociants et Transformateurs de Saumon [1991] ECR I-5505, paragraph 9). It follows that the Court has no jurisdiction to reply to the second question referred by the Tribunal de Commerce. The first question

9 As far as the role of the Commission is concerned, the Court pointed out in its judgment in Case 78/76 Steinike und Weinlig v Germany [1977] ECR 595, at paragraph 9, that the intention of the Treaty, in providing through Article 93 for aid to be kept under constant review and supervised by the Commission, is that the finding that aid may be incompatible with the common market is to be arrived at, subject to review by the Court, by means of an appropriate procedure which it is the Commission' s responsibility to set in motion.

49. Pour autant que le Royaume de Belgique fait état d’un projet d’arrêté royal ayant pour objet de rendre la réglementation en cause conforme aux articles 56 TFUE et 36 de l’accord EEE, il suffit de rappeler qu’il est de jurisprudence constante que l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts Commission/Grèce, C‑351/13, EU:C:2014:2150, point 20; Commission/Belgique, C‑317/14, EU:C:2015:63, point 34, et Commission/France, C‑485/14, EU:C:2015:506, point 30).

43. Consequently, the legislature must have sufficient information at its disposal at the time when the project is adopted. It is apparent from Article 5(3) of Directive 85/337 and Annex IV thereto that the minimum information to be supplied by the developer is to include a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, and the data required to identify and assess the main effects which the project is likely to have on the environment (see Linster , paragraph 55).

55 It should be remembered that, under Article 5(2) of the Directive and Annex III thereto, the minimum information to be supplied by the developer is to consist of a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, and the data required to identify and assess the main effects which the project is likely to have on the environment.

36. In that regard, given that, in principle, periods of imprisonment interrupt the continuity of the period of residence for the purposes of Article 28(3)(a) of Directive 2004/38, such periods may – together with the other factors going to make up the entirety of relevant considerations in each individual case – be taken into account by the national authorities responsible for applying Article 28(3) of that directive as part of the overall assessment required for determining whether the integrating links previously forged with the host Member State have been broken, and thus for determining whether the enhanced protection provided for in that provision will be granted (see, to that effect, Tsakouridis , paragraph 34).

32. Therefore, in order to ensure the protection of the rights conferred by the trade mark and to make possible the further marketing of goods bearing a trade mark without the proprietor of the trade mark being able to oppose that, it is essential that the proprietor can control the first placing of those goods on the market in the EEA, irrespective of the fact that they may have first been marketed outside that area (see, to that effect, Sebago and Maison Dubois , paragraphs 20 and 21; Zino Davidoff and Levi Strauss , paragraph 33; Van Doren + Q , paragraph 26; and Peak Holding , paragraphs 36 and 37).

26. The effect of the Directive is therefore to limit exhaustion of the rights conferred on the proprietor of a trade mark to cases where goods have been put on the market in the EEA and to allow the proprietor to market his products outside that area without exhausting his rights within the EEA. By making it clear that the placing of goods on the market outside the EEA does not exhaust the proprietor's right to oppose the importation of those goods without his consent, the Community legislature has allowed the proprietor of the trade mark to control the initial marketing in the EEA of goods bearing the mark (Sebago and Maison Dubois , cited above, paragraph 21, and Zino Davidoff and Levi Strauss , cited above, paragraph 33).

41. Furthermore, the assessment of whether the effect on trade between Member States is appreciable must take account of the conduct of the dominant undertaking in question, in so far as Article 82 EC precludes all conduct which is capable of affecting freedom of trade in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off domestic markets or by affecting the structure of competition within the single market (Case 22/78 Hugin Kassaregister and Hugin Cash Registers v Commission [1979] ECR 1869, paragraph 17).

123. In the light of the foregoing, it must be found that the procedure in the General Court infringed the second paragraph of Article 47 of the Charter in that it did not comply with the requirement to adjudicate within a reasonable time, which constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, Case C‑352/98 P Bergaderm and Goupil v Commission EU:C:2000:361, paragraph 42).

42 As regards Member State liability for damage caused to individuals, the Court has held that Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (Brasserie du Pêcheur and Factortame, paragraph 51).

36 Fourthly, it must be determined whether the restriction at issue in the main proceedings is suitable for ensuring the attainment of the objective pursued and does not go beyond what is necessary in order to achieve that objective, given that such restrictive national legislation fulfils that condition only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, judgment in HIT and HIT LARIX.C‑176/11, EU:C:2012:454, paragraph 22 and the case-law cited).

35. In addition, the Court has also held that Article 6(b) of Directive 2003/88 has direct effect in the sense that it confers on individuals rights upon which they are entitled to rely directly before the national courts ( Pfeiffer and Others , paragraphs 103 to 106, and Fuß , paragraphs 56 to 59).

103. In that regard, it is clear from the settled case-law of the Court that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, inter alia, Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357, paragraph 11, and Case C‑62/00 Marks & Spencer [2002] ECR I‑6325, paragraph 25).

51. That analysis is justified, in the first place, by the fact that the seizure and confiscation of goods upon their unlawful introduction, laid down in point (d) of the first paragraph of Article 233 of the Customs Code, constitutes a ground for the extinction of the customs debt which must be narrowly construed (see Elshani , paragraph 30). That article addresses the need to protect the Community’s own resources and that objective may not be prejudiced by creating new grounds for the extinction of a customs debt (see, to that effect, Case C‑112/01 SPKR [2002] ECR I‑10655, paragraph 31, and Elshani , paragraph 31).

166 With regard to judicial review of the conditions referred to in the previous paragraph of this judgment, the EU legislature must be allowed broad discretion in an area such as that involved in the main proceedings, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue (see, to that effect, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 123).

123. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, to that effect, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 58; Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 55 and 56, and Case C-157/96 National Farmers' Union and Others [1998] ECR I-2211, paragraph 61).

32 Where the various language versions differ, the scope of the provision in question cannot be determined on the basis of an interpretation which is exclusively textual, but must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, C‑550/14, EU:C:2016:354, paragraph 28 and the case-law cited).

20. In that regard, it should be noted that ‘pay’ within the meaning of Article 157(2) TFEU covers pensions which depend on the employment relationship between worker and employer, excluding those deriving from a statutory scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship than by considerations of social policy (Joined Cases C‑395/08 and C‑396/08 Bruno and Others [2010] ECR I‑5119, paragraph 41 and the case‑law cited). Accordingly, that concept cannot be extended to encompass social security schemes or benefits – such as retirement pensions – which are directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned and which are obligatorily applicable to general categories of employee (see Case C‑366/99 Griesmar [2001] ECR I‑9383, paragraph 27 and the case‑law cited).

27 According to settled case-law, although advantages in the nature of social security benefits are not in principle alien to the concept of pay, that concept, as defined in Article 119 of the Treaty, cannot be extended to encompass social security schemes or benefits - such as, for example, retirement pensions - which are directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned and which are obligatorily applicable to general categories of employees. Such schemes give employees the benefit of a statutory scheme, to the financing of which workers, employers and, possibly, the public authorities contribute to an extent that is determined not so much by the employment relationship between the employer and the worker as by considerations of social policy (see, inter alia, Case 80/70 Defrenne [1971] ECR 445, paragraphs 7 and 8; Case 170/84 Bilka [1986] ECR 1607, paragraphs 17 and 18; Case C-262/88 Barber [1990] ECR I-1889, paragraphs 22 and 23; and Case C-7/93 Beune [1994] ECR I-4471, paragraph 24).

8 It should be added that in that same judgment the Court held that in the context of travel within the Community the exemptions available in a Member State for goods contained in the personal luggage of travellers are granted as soon as the traveller in question has in fact had an opportunity to make purchases in another Member State ( judgment of 14 February 1984 in Case 278/82, cited above, paragraph 45 ). It follows that the distinction drawn by the regulations in question between "genuine" travellers and "fiscal" travellers in order to deny the latter the benefit of the exemptions provided for in the directive is incompatible therewith .

21. To determine whether that is so, in the absence of Community rules at the material time, it is for the national court to take into account national commercial practices and traditional cutting methods. " 9. Following the judgment in Voogd Vleesimport en -export , cited above, Kühne & Heitz requested from the Productschap payment of the refunds which the latter had, in its view, wrongly required it to reimburse and sought payment of a sum equivalent to the greater amount which it would have received by way of refunds if the chicken legs exported after December 1987 had been classified in accordance with that judgment. 10. The Productschap rejected those requests and, ruling on the complaint submitted to it, upheld its earlier decision to reject, by decision of 21 July 1997. Kühne & Heitz then brought an action against that latter decision, which is the subject of the main proceedings. The order for reference and the question referred for a preliminary ruling 11. In its order for reference, the College van Beroep voor het bedrijfsleven rejected the second head of claim submitted to it by Kühne & Heitz for payment of a sum equivalent to the greater amount to which, in its view, it is entitled in respect of its exports after December 1987. 12. With respect to the first head of claim submitted by Kühne & Heitz for payment of the refunds which, in its view, it had been wrongly required to reimburse, the College van Beroep voor het bedrijfsleven stated that under Netherlands law, administrative bodies, in principle, always have the power to reopen a final decision. The existence of such a power may, in certain circumstances, imply an obligation to withdraw such a decision. 13. The College van Beroep voor het bedrijfsleven takes the view that the Productschap failed to take account of those factors when it claimed that Kühne & Heitz could bring only one action for revision of the judgment of 22 November 1991 before that court. The Productschap therefore relied on a misinterpretation of the law. 14. However, the College van Beroep voor het bedrijfsleven considered that, although it was, in principle, possible to annul the decision of 21 July 1997 on that ground, such annulment would serve a purpose only if it were certain that the Productschap not only had the power to reopen its previous decision but also an obligation to review whether there is, in the case of each of the exported goods, a right to a refund and, if so, to determine the amount of that refund. 15. The College van Beroep voor het bedrijfsleven observes that the assessment of whether there is an obligation to review must be based on the principle that judicial decisions given subsequent to a final administrative decision cannot, in themselves, affect the finality of that decision. That applies equally in the case of preliminary rulings given by the Court of Justice to the effect that the law ought to have been applied in accordance with the interpretation given by the Court from the entry into force of the rule interpreted, unless the Court has expressly held otherwise. The national court states that the argument seeking to establish a rule that final decisions must be amended in order to make them consistent with subsequent case-law ─ in the present case, Community case-law ─ would give rise to administrative chaos, seriously impair legal certainty and therefore cannot be accepted. 16. However, the College van Beroep voor het bedrijfsleven points out that, under Netherlands law, subsequent case-law may, in certain circumstances, have an effect in cases in which the legal remedies have been exhausted. It refers to the case-law of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) on the effects in criminal-law cases of judgments given by the European Court of Human Rights. The Hoge Raad der Nederlanden thus held, in a judgment of 1 February 1991 (Nederlandse Jurisprudentie ─ NJ ─ 1991, p. 413), that the subsequent discovery of an infringement of a fundamental right laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is one determining factor which may preclude enforcement of a decision given in a criminal law case which cannot be the subject of an appeal. 17. The College van Beroep voor het bedrijfsleven is uncertain whether the finality of an administrative decision must be disregarded in a case such as that which has been brought before it in which, first, Kühne & Heitz has exhausted the legal remedies available to it, second, its interpretation of Community law has proved to be contrary to a judgment given subsequently by the Court and, third, the person concerned complained to the administrative body immediately after becoming aware of that judgment of the Court. 18. That question is justified in the light of, in particular, Article 234 EC, according to which a national court against whose decision there is no judicial remedy is obliged to refer the question to the Court for a preliminary ruling. In 1991, the College van Beroep voor het bedrijfsleven mistakenly took the view that it was released from that obligation because, in accordance with the judgment in Case 283/81 CILFIT [1982] ECR 3415, it considered that the interpretation of the customs tariff subheadings concerned left no room for doubt. The national court is therefore uncertain whether effective and full implementation of Community law requires that, in a case such as that which has been brought before it, the rule on the finality of administrative decisions be relaxed. 19. In the light of those factors, the College van Beroep voor het bedrijfsleven decided to stay proceedings and refer the following question to the Court for a preliminary ruling: " Under Community law, in particular under the principle of Community solidarity contained in Article 10 EC, and in the circumstances described in the grounds of this decision, is an administrative body required to reopen a decision which has become final in order to ensure the full operation of Community law, as it is to be interpreted in the light of a subsequent preliminary ruling?" The question referred for a preliminary ruling 20. As the Court has already held, it is for all the authorities of the Member States to ensure observance of the rules of Community law within the sphere of their competence (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 13). 21. The interpretation which, in the exercise of the jurisdiction conferred on it by Article 234 EC, the Court gives to a rule of Community law clarifies and defines, where necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force (see, inter alia, Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16, and Case C-50/96 Deutsche Telekom [2000] ECR I-743, paragraph 43).

43 In that connection, it is appropriate to recall, first, that, according to settled case-law (see, in particular, Case 61/79 Denkavit Italiana v Amministrazione delle Finanze dello Stato [1980] ECR 1205, paragraphs 16 and 17, and Joined Cases 66/79, 127/79 and 128/79 Salumi v Amministrazione delle Finanze [1980] ECR 1237, paragraphs 9 and 10), the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. As the Court recognised in Defrenne II, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.

33. A measure which constitutes an obstacle to freedom of movement for workers can be accepted only if it pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons in the public interest. Even if that were so, application of that measure would still have to be such as to ensure achievement of the objective in question and not go beyond what is necessary for that purpose (see Olympique Lyonnais , paragraph 38).

100. As regards the argument that the Court of First Instance failed to take account of SGL Carbon’s financial capacity, it must be observed that, according to settled case‑law which rightly provides inspiration for paragraph 333 of the judgment under appeal, the Commission is not required, when determining the amount of the fine, to take into account the financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see 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 54 and 55, and SGL Carbon v Commission , paragraphs 105 and 106).

55 THAT ARGUMENT CANNOT BE ACCEPTED EITHER . AS THE COMMISSION HAS RIGHTLY OBSERVED , RECOGNITION OF SUCH AN OBLIGATION WOULD BE TANTAMOUNT TO CONFERRING AN UNJUSTIFIED COMPETITIVE ADVANTAGE ON UNDERTAKINGS LEAST WELL ADAPTED TO THE CONDITIONS OF THE MARKET .

60. Cependant, au-delà du cas habituel dans lequel le consommateur moyen perçoit une marque comme un tout, et nonobstant la circonstance selon laquelle l’impression d’ensemble peut être dominée par un ou plusieurs composants d’une marque complexe, il n’est nullement exclu que, dans un cas particulier, une marque antérieure, utilisée par un tiers dans un signe composé comprenant la dénomination de l’entreprise de ce tiers, conserve une position distinctive autonome dans le signe composé, sans pour autant en constituer l’élément dominant (voir arrêt Medion, EU:C:2005:594, point 30).

S’agissant des exigences du principe d’effectivité, il convient d’examiner si un système de remboursement des sommes dues en vertu du droit de l’Union et dont le montant a été constaté par des décisions juridictionnelles exécutoires, tel que le système mis en place par les règles prévues à l’article XV de l’OUG n° 8/2014 et par l’arrêté n° 365/741/2014, rend excessivement difficile ou impossible en pratique l’exercice des droits tirés de l’ordre juridique de l’Union, en tenant compte de la place de ces règles dans l’ensemble de la procédure, du déroulement de cette dernière et des particularités de ces règles devant les instances nationales (voir, en ce sens, arrêts du 27 juin 2013, Agrokonsulting-04, C‑93/12, EU:C:2013:432, point 48, ainsi que du 6 octobre 2015, Târșia, C‑69/14, EU:C:2015:662, points 36 et 37).

36. Regarding the principle of effectiveness, it should be borne in mind that every case in which the question arises as to whether a provision of national procedural legislation makes the exercise of rights conferred on individuals by the legal order of the European Union impossible in practice or excessively difficult must be analysed by reference to the role of the rules concerned in the proceedings as a whole, the way in which the proceedings are conducted and the special features of those rules, before the various national bodies (see, to that effect, judgment in Asturcom Telecomunicaciones , C‑40/08, EU:C:2009:615, paragraph 39 and the case-law cited).

10. As a preliminary point, it should be pointed out that, according to settled case-law, although direct taxation falls within the competence of the Member States, the latter must none the less exercise that competence consistently with Community law (Case C-80/94 Wielockx [1995] ECR I-2493, paragraph 16, and Case C-319/02 Manninen [2004] ECR I-7477, paragraph 19). In particular, the national provision must not obstruct the functioning of the mechanism established by Regulation No 4253/88 (see, to that effect, Joined Cases C-36/80 and 71/80 Irish Creamery Milk Suppliers Association & Others [1981] ECR 735, paragraph 15).

168 Thus, although the Court has accepted, in the context particular to betting and gaming, that there may be justification for a restriction such as the granting of a monopoly to a public body entrusted, inter alia, with the task of financing social actions or welfare, it is apparent from the Court’s decisions that that has been the case only with regard to a certain number of overriding reasons relating to the public interest, such as, for example, the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling as well as the general need to preserve public order, and in the light of certain moral, religious or cultural factors associated with betting and gaming (see to that effect, inter alia, judgments in Läärä and Others, C‑124/97, EU:C:1999:435, paragraphs 41 and 42; Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraphs 66, 67 and 72; and Stoß and Others, C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504, paragraphs 79 and 81 to 83).

67. In that connection, it must be acknowledged that the grant of exclusive rights to operate games of chance via the internet to a single operator, such as Santa Casa, which is subject to strict control by the public authorities, may, in circumstances such as those in the main proceedings, confine the operation of gambling within controlled channels and be regarded as appropriate for the purpose of protecting consumers against fraud on the part of operators.

45. In that regard, Article 5(1) and (2) of Directive 89/104 states that that proprietor has exclusive rights by virtue of which he is entitled to prevent all third parties not having his consent from using in the course of trade, that is to say, from putting to some commercial use (see, to that effect, Case C-96/09 P Anheuser-Busch v Budějovický Budvar [2011] ECR I-2131, paragraph 144), any sign which is identical or similar in relation to certain goods and services and under certain conditions.

28 LGE complains that the General Court found that the Commission has an absolute discretionary power to decide whether the statement of objections had to be sent to the parent company or to the subsidiary, although, in certain circumstances, such as those in this instance, the exercise of that discretion is restricted by respect for the rights of defence. LGE argues that it is apparent from the judgment of 22 January 2013, Commission v Tomkins (C‑286/11 P, EU:C:2013:29, paragraph 39), that, if a subsidiary submits exculpatory evidence from its records or from interviewing staff, that evidence will automatically benefit the parent company. Consequently, according to LGE, the ability of a parent company to exercise its rights of defence depends on its subsidiary being involved in the procedure.

39. Consequently, the General Court was correct to rely on the premiss that the liability of Tomkins as parent company is, in the present case, purely derivative and secondary and thus depends on that of its subsidiary, Pegler, those two companies, moreover, having been ordered jointly and severally to pay the fine in respect of which the reduction was sought.

57. In that regard, it must be noted at the outset that under consistent case-law the mere acquisition and holding of shares in a company is not to be regarded as an economic activity within the meaning of the Sixth Directive, conferring on the holder the status of a taxable person. The mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis because any dividend yielded by those holdings is merely the result of ownership of the property and is not the consideration for any economic activity within the meaning of that directive (see Harnas & Helm , paragraph 15, and Floridienne and Berginvest , paragraph 21). If such activities do not therefore in themselves constitute an economic activity within the meaning of that directive, the same must be true of activities consisting in the sale of such holdings (see Wellcome Trust , cited above, paragraph 33, and Case C-442/01 KapHag [2003] ECR I-6851, paragraphs 38 and 40).

79. In that context, a colour per se may acquire, for the goods or services in respect of which registration is sought, a distinctive character in consequence of the use which has been made of it, by virtue of Article 7(3) of Regulation No 40/94. By contrast, in the case of a colour per se, distinctiveness without any prior use is inconceivable save in exceptional circumstances, and particularly where the number of goods or services for which the mark is claimed is very restricted and the relevant market very specific (see, in regard to the identical provisions of Article 3(1)(b) and (3) of Directive 89/104, Libertel, cited above, paragraphs 66 and 67).

67. However, even if a colour per se does not initially have any distinctive character within the meaning of Article 3(1)(b) of the Directive, it may acquire such character in relation to the goods or services claimed following the use made of it, pursuant to Article 3(3) of the Directive. That distinctive character may be acquired, inter alia , after the normal process of familiarising the relevant public has taken place. In such cases, the competent authority must make an overall assessment of the evidence that the mark has come to identify the product concerned as originating from a particular undertaking, and thus to distinguish that product from goods of other undertakings (Windsurfing Chiemsee , cited above, paragraph 49).

49. To that end, the aim of Article 6(1) of Decision No 1/80 is to consolidate progressively the position of Turkish workers in the host Member State (judgment in Payir and Others , C‑294/06, EU:C:2008:36, paragraph 37).

42 In that context, it noted that, given that the hyperlink and the website to which it refers give access to the protected work using the same technical means, namely the internet, such a link must be directed to a new public. Where that is not the case, in particular, due to the fact that the work is already freely available to all internet users on another website with the authorisation of the copyright holders, that act cannot be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. Indeed, as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public (see, to that effect, judgment of 13 February 2014, Svensson and Others, EU:C:2014:76, paragraphs 24 to 28, and order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315, paragraphs 15, 16 and 18).

25. In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.

26. As regards diagnostic reagents, it is clear from those notes that diagnostic reagents are used in the evaluation of physical, biophysical or biochemical processes and states in animals and humans and that their function is based upon a measurable or observable change in their constituent biological or chemical substances (see, to that effect, judgment in Sysmex Europe , EU:C:2014:2097, paragraph 34).

24 Although those principles were upheld in the judgment Barber in relation to `contracted-out' occupational pension schemes, the Court also stated, at paragraphs 44 and 45 of that judgment, that overriding considerations of legal certainty precluded reliance being placed on the direct effect of Article 119 of the Treaty in order to claim entitlement to a pension with effect from a date prior to delivery of the judgment in that case, except in the case of persons who had in the meantime taken steps to safeguard their rights.

45 It must therefore be held that the direct effect of Article 119 of the Treaty may not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of this judgment, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law .

48. While it is the case that, under the principle of the interdependence of relevant factors, in particular the similarity between the trade marks and between the goods or services covered, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (see, inter alia, Case C‑39/97 Canon [1998] ECR I‑5507, paragraph 17; Lloyd Schuhfabrik Meyer , paragraph 19; and T.I.M.E. ART v OHIM , paragraph 35), the Court has held that, for the purposes of applying Article 8(1)(b) of Regulation No 40/94, the likelihood of confusion presupposes both that the mark applied for and the earlier mark are identical or similar, and that the goods or services covered in the application for registration are identical or similar to those in respect of which the earlier mark was registered. Those conditions are cumulative (see Case C-106/03 P Vedial v OHIM [2004] ECR I-9573, paragraph 51).

39. In this respect, it should be recalled that an agreement concluded by the Council of the European Union with a non-Member State in accordance with Articles 217 TFEU and 218 TFEU, constitutes, as far as the European Union is concerned, an act of one of the institutions of the Union, within the meaning of point (b) of the first paragraph of Article 267 TFEU; that, from the moment it enters into force, the provisions of such an agreement form an integral part of the legal order of the European Union; and that, within the framework of that legal order, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement (see, to that effect, Case 12/86 Demirel [1987] ECR 3719, paragraph 7, and Case C‑162/96 Racke [1998] ECR I‑3655, paragraph 41). In addition, having been concluded by two subjects of public international law, the EC-Israel Association Agreement is governed by international law and, more specifically, as regards its interpretation, by the international law of treaties.

41 As far as the Community is concerned, an agreement concluded by the Council with a non-member country in accordance with the provisions of the EC Treaty is an act of a Community institution, and the provisions of such an agreement form an integral part of Community law (see Demirel, cited above, paragraph 7).

73 SUBPARAGRAPH 1 OF ARTICLE 1 ( 1 ) OF THE CONTESTED DECISION MUST THEREFORE BE ANNULLED . CHAPTER 2 THE COMPLAINT OF A CONCERTED PRACTICE HAVING AS ITS OBJECT THE PROTECTION OF THE NETHERLANDS MARKET

46. In addition, the Court has stated that to allow, within the scheme of the Brussels Convention, decisions in which courts other than those of the State in which a particular patent is issued rule indirectly on the validity of that patent would multiply the risk of conflicting decisions which the convention seeks specifically to avoid (see GAT , paragraph 29).

29. Third, to allow, within the scheme of the Convention, decisions in which courts other than those of a State in which a particular patent is issued rule indirectly on the validity of that patent would also multiply the risk of conflicting decisions which the Convention seeks specifically to avoid (see, to that effect, Case C‑406/92 Tatry [1994] ECR I-5439, paragraph 52, and Besix , cited above, paragraph 27).

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).

23 Admittedly, some Member States are not yet parties to the Brussels Convention (Republic of Austria, Republic of Finland and Kingdom of Sweden) or the Lugano Convention (Kingdom of Belgium and Hellenic Republic) and, until such time as all Member States have acceded to one or other of those Conventions, enforcement of judgments in civil and commercial matters will not be secured throughout the Community. As a result, as between some Member States there is a real risk that it will be impossible or, at least, considerably more difficult and more expensive to enforce an order for costs made in a Member State against non-residents (see for the enforcement of judgments in criminal cases, which is not covered by those conventions, Case C-29/95 Pastoors and Trans-Cap [1997] ECR I-0000, paragraph 21).

21 It is indeed the case that the harmonization and cooperation brought about at Community level in civil and commercial matters by the Brussels Convention of 27 September 1968, concerning the jurisdiction of the courts and the enforcement of judgments in those areas, do not cover criminal matters, and that there is no analogous convention between the Kingdom of Belgium and the Federal Republic of Germany to secure the enforcement of court decisions in criminal matters. There is therefore a real risk that enforcement of a judgment against a non-resident would be impossible or, at least, considerably more difficult and onerous.

20. It is for the Member State of issue to investigate whether the minimum requirements imposed by European Union law, particularly those relating to residence and fitness to drive, laid down in Article 7(1) of that directive, have been satisfied and, therefore, whether the issue of a driving licence is justified ( Schwarz , paragraph 76 and case-law cited).

34. In those circumstances, even if it were necessary to take account of Article 13(2)(f), inserted into Regulation No 1408/71 by Regulation No 2195/91, that is to say many years after completion by Mrs Reichel-Albert of child-raising periods in Belgium, that provision would still not be relevant in the circumstances of the main proceedings as regards taking into account child-raising periods for the purposes of old-age insurance (see, to that effect, Kauer , paragraph 31).

31 That argument cannot be accepted. Even if it were necessary to take account of Article 13(2)(f), inserted into Regulation No 1408/71 by Regulation No 2195/91, that is to say many years after completion by Mrs Kauer of child-raising periods in Belgium, that provision would still not be relevant in the circumstances of the present case as regards taking into account child-raising periods for the purposes of old-age insurance.

89. In the case where a third party’s ad suggests that there is an economic link between that third party and the proprietor of the trade mark, the conclusion must be that there is an adverse effect on the function of indicating origin.

41. Next, it must be noted that if no possibility of imposing a penalty on an entity other than the one which committed the infringement were foreseen, undertakings could escape penalties by simply changing their identity through restructurings, sales or other legal or organisational changes. This would jeopardise the objective of suppressing conduct that infringes the competition rules and preventing its reoccurrence by means of deterrent penalties (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 173; Case C‑289/04 P Showa Denko v Commission [2006] ECR I‑5859, paragraph 61; and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I-0000, paragraph 22).

22. In that regard, it should be recalled that the purpose of Article 15(2) of Regulation No 17 is to empower the Commission to impose fines with a view to enabling it to carry out the task of supervision conferred on it by Community law (see Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 105). That task includes in particular suppressing illegal activities and preventing their reoccurrence (see Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 173).

132. It is, admittedly, undisputed that the concept of State aid is a legal concept by nature and must be interpreted on the basis of objective elements and that the Commission does not have a discretion as to the classification of a measure as “State aid” within the meaning of Article 87(1) EC, but is subject to judicial review, in principle to the full extent (see, to that effect, Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraphs 111 and 112).

31 It also follows from the above provisions that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish 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 established or assessed the facts, the Court of Justice has jurisdiction under Article 168a of the Treaty to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, inter alia, Brazzelli Lualdi, paragraphs 48 and 49, and Deere, paragraph 21).

49 The Court of First Instance thus has exclusive jurisdiction to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it. In the present case the findings of the Court of First Instance relating to the events which preceded the adoption of Regulation No 3294/88 (paragraph 11 of the judgment), which are not challenged, can no longer be questioned. The Court of First Instance has also exclusive jurisdiction to assess those facts. In the present case the same is true of its assessment that the transmission on 23 December 1985 by the Commission to the Council of the second proposal relating to weightings could have taken place more speedily so that the legislation could have been adopted as early as 1 January 1984 (paragraph 39 of the judgment). On the other hand, when the Court of First Instance has found or assessed facts, the Court of Justice has jurisdiction to exercise the review required of it by Article 168a of the EEC Treaty provided that the Court of First Instance has defined their legal nature and determined the legal consequences. In the present case that applies to the assessment by the Court of First Instance that the slowness of the preparatory procedure constituted a fault (paragraph 39 of the judgment).

42 Referring, inter alia, to the definition of ‘durable medium’ contained in Article 3(m) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66, and corrigenda OJ 2009 L 207, p. 14; OJ 2010 L 199, p. 40; OJ 2011 L 234, p. 46; and OJ 2015 L 36, p. 15), the Court has held that that medium must enable the consumer, in a similar way to paper form, to be in possession of the relevant information in order to enable him to exercise his rights, where necessary. What is relevant for the consumer is that he should be able to store the information which has been addressed to him personally, to rest assured that its content will not be altered, that the information will be accessible for an adequate period and that it will be possible to reproduce it unchanged (see, to that effect, judgments of 5 July 2012, Content Services, C‑49/11, EU:C:2012:419, paragraphs 42 to 44, and of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraph 35).

93. Having first decided that the Commission had acknowledged, at least implicitly, that DPAG bore costs partly associated with the provision of SGEI, as noted in paragraphs 66 to 73 of the present judgment, the General Court then, in the context of a review of legality, correctly examined the complaint made by DPAG concerning the method followed by the Commission as regards the calculation of any overcompensation in the sense of the third condition under the judgment in Altmark Trans and Regierungspräsidium Magdeburg , as noted in paragraphs 41 to 43 of the present judgment.

43. To answer this part of the question, it must first be determined whether Regulation No 1191/69 imposes binding rules which the Member States must comply with when they consider imposing public service obligations in the land transport sector.

110. It should first be observed that, by claiming that the General Court infringed Article 73 of Regulation No 40/94 in rejecting their plea concerning failure to state sufficient reasons for the contested decisions, Helena Rubinstein and L’Oréal are disputing the General Court’s interpretati on of European Union law or its application of that law. Accordingly, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not in that way base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, inter alia, Case C‑41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 17, and Case C‑16/06 P Les Éditions Albert René v OHIM [2008] ECR I‑10053, paragraph 110). The fourth ground of appeal is therefore admissible.

46. That conclusion is supported both by the subject-matter and purpose of short-term incapacity benefit in youth and by the basis on which it is calculated and the conditions for granting it (see, by analogy, Case 171/82 Valentini [1983] ECR 2157, paragraph 13; De Cuyper , paragraph 25; and Petersen , paragraph 21).

21. With regard to determining the precise nature of the benefit at issue in the main proceedings, it is clear from the Court’s case-law that social security benefits must be regarded, irrespective of the characteristics peculiar to different national legal systems, as being of the same kind when their purpose and object as well as the basis on which they are calculated and the conditions for granting them are identical. On the other hand, characteristics which are purely formal must not be considered relevant criteria for the classification of the benefits (see, to that effect, Case 171/82 Valentini [1983] ECR 2157, paragraph 13, and Case C‑406/04 De Cuyper [2006] ECR I‑6947, paragraph 25).

39 In the light of that exclusion, the jurisdiction of the Community design courts laid down in Article 80(1) of Regulation No 6/2002 to hear the actions and claims referred to in Article 81 of that regulation follows from rules directly provided for by that regulation, which have the character of lex specialis in relation to the rules provided for by Regulation No 44/2001 (see, by analogy, judgments of 5 June 2014, Coty Germany, C‑360/12, EU:C:2014:1318, paragraph 27, and of 18 May 2017, Hummel Holding, C‑617/15, EU:C:2017:390, paragraph 26).

35. According to settled case-law, the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (see, inter alia , Ekro , cited above, paragraph 11, Case C-287/98 Linster and Others [2000] ECR I-6917, paragraph 43, and Case C-357/98 Yiadom [2000] ECR I-9265, paragraph 26).

26 It should also be recalled that the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (Case 327/82 Ekro v Produktschap voor Vee en Vlees [1984] ECR 107, paragraph 11; and Case C-287/98 State of the Grand Duchy of Luxembourg v Linster and Others [2000] ECR I-6917, paragraph 43).

46. Additional confirmation of the conclusion set out in paragraph 43 above is provided by the judgment in Blijdenstein . In paragraph 34 of that judgment, the Court interpreted Article 5(2) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 388, p. 36), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and – amended version – p. 77), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1), as not permitting a public body to bring in the courts of the contracting State in which it is established an action for recovery seeking reimbursement of sums paid under public law to a maintenance creditor, to whose rights it is subrogated, against the maintenance debtor domiciled in another contracting State, since that body is not a weaker party in relation to the maintenance debtor.

33. As the Finanzamt Köln and the German Government claim, the principle of free movement of capital, in Article 56(1) TFEU, cannot have the effect of requiring Member States to go beyond the cancelling of national income tax payable by a shareholder on dividends of foreign origin received and the reimbursing of a sum whose origin is in the tax system of another Member State (see, by analogy, Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 52), if the first Member State is not to see its fiscal autonomy limited by the exercise of fiscal power of the other Member State (see, in particular, Test Claimants in the FII Group Litigation , paragraph 47; Case C‑194/06 Orange European Smallcap Fund [2008] ECR I-3747, paragraph 30, and Case C-128/08 Damseaux [2009] ECR I-6823, paragraph 25).

30. As a preliminary point, it must be observed that it is for each Member State to organise, in compliance with Community law, its system for taxing distributed profits and to define, in that context, the tax base and the tax rate which apply to the shareholder receiving them (see, to that effect, Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 50, and Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraph 47).

39. When such an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 145, and Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 78).

58 According to the Court’s settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given priority over the other language versions in that regard. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgments of 27 March 1990, Cricket St Thomas, C‑372/88, EU:C:1990:140, paragraphs 18 and 19; of 15 November 2012, Kurcums Metal, C‑558/11, EU:C:2012:721, paragraph 48; and of 17 March 2016, Kødbranchens Fællesråd, C‑112/15, EU:C:2016:185, paragraph 36).

48. It is settled case‑law that the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement for uniform application of European Union law. Where there is a divergence between the various language versions, the provision in question must thus be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (see, inter alia, Case C‑41/09 Commission v Netherlands [2011] ECR I‑831, paragraph 44 and the case‑law cited).

48. On the other hand, the EU legislation also takes into consideration the fact that exporters may encounter practical difficulties in obtaining the customs documents from the authorities of the non-member country of importation, upon whom they have no means of exerting pressure. It is in that context that it enables the competent national authorities to grant the exporter concerned extensions of time (see, to that effect, judgment in Eribrand , EU:C:2003:364, paragraphs 41 and 42).

24 For that purpose, in accordance with settled case-law it is necessary to take into account not only the wording of that provision, but also the objectives and the scheme of that directive (see, to that effect, judgments of 3 April 2008, Banque Fédérative du Crédit Mutuel, C‑27/07, EU:C:2008:195, paragraph 22, and of 1 October 2009, Gaz de France — Berliner Investissement, C‑247/08, EU:C:2009:600, paragraph 26).

26. To answer that question, it is necessary to take account of the wording of the provision whose interpretation is sought, as well as the objectives and the scheme of Directive 90/435 (see, to that effect, Joined Cases C‑283/94, C‑291/94 and C‑292/94 Denkavit and Others [1996] ECR I‑5063, paragraphs 24 and 26; Case C‑375/98 Epson Europe [2000] ECR I‑4243, paragraphs 22 and 24; and Case C‑27/07 Banque Fédérative du Crédit Mutel [2008] ECR I‑2067, paragraph 22).

55 Furthermore, in order to find that a mark had been registered in breach of the ground for refusal relating to the risk of deception, it must be established that the sign filed for the purposes of registration as a trade mark creates per se such a risk (see, to that effect, judgment of 4 March 1999, Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraphs 42 and 43).

17. Where questions submitted by national courts concern the interpretation of a provision of Community law, the Court is thus bound, in principle, to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of Community law requested bears no relation to the actual facts of the main action or its purpose, or that 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 BIAO , paragraph 89, and Confederación Española de Empresarios de Estaciones de Servicio , paragraph 17).

89. The Court of Justice is therefore bound in principle to give a ruling unless it is obvious that the request is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of Community law requested bears no relation to the actual facts of the main action or its purpose, or that 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, in particular, Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 18; Bosman , paragraph 61; and Case C-134/95 USSL No 47 di Biella [1997] ECR I-195, paragraph 12).

89. Thus, it is clear from case-law that Directive 85/337 requires that all projects falling within Annex II that are likely to have significant effects on the environment be made subject to an assessment (see, to that effect, WWF and Others , paragraph 45; Commission v Portugal , paragraph 82; and Case C-87/02 Commission v Italy , paragraph 44).

37. In addition, it should be borne in mind that, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. However, the Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see judgment in Commission v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 29 and the case-law cited).

29. In addition, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment in Buono and Others v Commission , EU:C:2014:2284, paragraph 27 and the case-law cited).

46. In that regard, it is important to note that although the review by a national court of the formal legality of a national measure seeking the recovery of unlawful State aid must be viewed simply as an expression of the general principle of EU law of effective judicial protection, national courts are required, under Article 14(3) of Regulation No 659/1999, to ensure that the decision ordering the recovery of the unlawful aid is fully effective and achieves an outcome consistent with the objective pursued by that decision (see Case C‑210/09 Scott and Kimberly Clark [2010] ECR I–0000, paragraphs 25 and 29).

57. Services such as those at issue in the main proceedings may thus fall within the scope of Article 49 EC where, as in the cases in the main proceedings, at least one of the providers is established in a Member State other than that in which the service is offered (see, in particular, Zenatti , paragraph 24), unless Article 43 EC applies.

24 As the Court held in Schindler, the Treaty provisions on the freedom to provide services apply, in the context of running lotteries, to an activity which enables people to participate in gambling in return for remuneration. Such an activity therefore falls within the scope of Article 59 of the EC Treaty (now, after amendment, Article 49 EC) if at least one of the providers is established in a Member State other than that in which the service is offered.

28. It is settled case-law that the principle of non-discrimination requires that comparable situations must not be treated differently unless such treatment is objectively justified (see Case C‑354/95 National Farmers’ Union and Others [1997] ECR I‑4559, paragraph 61).

40. The Court has held, on the subject of Directive 95/46, which is based on Article 100a of the Treaty, that recourse to that legal basis does not presuppose the existence of an actual link with free movement between Member States in every situation referred to by the measure founded on that basis (see Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others [2003] ECR I-4989, paragraph 41, and the case-law cited therein).

41. It may be added that recourse to Article 100a of the Treaty as legal basis does not presuppose the existence of an actual link with free movement between Member States in every situation referred to by the measure founded on that basis. As the Court has previously held (see Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419, paragraph 85, and Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 60), to justify recourse to Article 100a of the Treaty as the legal basis, what matters is that the measure adopted on that basis must actually be intended to improve the conditions for the establishment and functioning of the internal market. In the present case, that fundamental attribute was never in dispute before the Court with respect to the provisions of Directive 95/46, in particular those in the light of which the national court raises the question of the compatibility of the national legislation in question with Community law.

188. As regards the condition linked to the operator’s professional experience, the Court of First Instance rightly noted in paragraph 140 of the judgment under appeal that it is necessary to examine whether or not the operator is a trader whose business activities consist mainly in import and export transactions and whether he had already gained some experience in the conduct of such transactions ( Söhl & Söhlke , paragraph 57).

56 In that regard, it must be borne in mind that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgments of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 53, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 34 and the case-law cited).

34. It must be borne in mind in this regard that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, judgment in Kamberaj , C‑571/10, EU:C:2012:233, paragraph 40 and the case-law cited, and order in Dél-Zempléni Nektár Leader Nonprofit , C‑24/13, EU:C:2014:40, paragraph 39).

54. Il y a lieu de constater que l’instauration d’une pratique nationale, telle que la présomption de conformité en cause en l’espèce, introduite par l’État membre et exécutée avec son concours a également, au moins potentiellement, un effet sur les importations de produits de construction en cause, en provenance des autres États membres, comparable à celui résultant d’actes gouvernementaux à caractère obligatoire (voir, en ce sens, arrêt Commission/Irlande, précité, point 27).

38. That provision is also contrary to the general system established by Directive 69/335. The fact that a Member State has exercised the option provided for in that directive by abolishing capital duty does not mean that, if the effective centre of management of a capital company is transferred from one Member State to another Member State, the latter State may automatically make that transaction subject to capital duty (see, to that effect, ING. AUER , paragraphs 34 and 35).

34. Furthermore, it is clear from the Court’s case-law that although the Member States are free, under Article 7(2) of Directive 69/335, to exempt contributions to companies from capital duty, such an exemption cannot lead to the consequence that another Member State is entitled to tax those contributions (see, to that effect, Case C-494/03 Senior Engineering Investments [2006] ECR I‑525, paragraph 43).

50 As the Advocate General also states in point 37 of his Opinion, the situation is different where doctors in primary care teams are on call by being contactable at all times without having to be at the health centre. Even if they are at the disposal of their employer, in that it must be possible to contact them, in that situation doctors may manage their time with fewer constraints and pursue their own interests. In those circumstances, only time linked to the actual provision of primary care services must be regarded as working time within the meaning of Directive 93/104.

33. The Court has also held that, as can be seen from Article 4(1) of Directive 2003/109 and recital 6 thereto, it is the five-year duration of the legal and continuous residence that shows that the person concerned has put down roots in the country and therefore that that person is a long-term resident (see, to that effect, the judgment in Singh , EU:C:2012:636, paragraph 46).

46. As is observed in Article 4(1) of, and recital 6 in the preamble to, Directive 2003/109, it is the duration of the legal and continuous residence of 5 years which shows that the person concerned has put down roots in the country and therefore the long-term residence of that person.

22. It must also be recalled that, for there to be letting of immovable property within the meaning of Article 13B(b) of the Sixth Directive, all the conditions characterising that transaction must be satisfied, that is to say, the landlord of property must have assigned to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude other persons from it (judgment in Medicom and Maison Patrice Alard , C‑210/11 and C‑211/11, EU:C:2013:479, paragraph 26 and case-law cited).

44. According to settled case-law, in interpreting a provision of European Union 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, Case C-301/98 KVS International [2000] ECR I-3583, paragraph 21; Case C‑298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-7841, paragraph 15; and Case C-403/09 PPU Detiček [2009] ECR I‑0000, paragraph 33). Account should therefore be taken, for the purposes of answering the first and fifth questions referred for a preliminary ruling, both of the wording of Article 71 of Regulation No 44/2001 and that particular article’s objective and of the context in which Article 71 occurs and the objectives pursued by the regulation.

33. According to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording and context but also the objectives pursued by the rules of which it forms part (see, to that effect, inter alia, Case C‑301/98 KVS International [2000] ECR I‑3583, paragraph 21; Case C‑300/05 ZVK [2006] ECR I‑11169, paragraph 15; and Case C‑301/08 Bogiatzki, married name Ventouras [2009] ECR I‑0000, paragraph 39).

27 It should be observed at the outset that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (Case C-98/98 Midland Bank [2000] ECR I-4177, paragraph 19, and Case C-408/98 Abbey National [2001] ECR I-1361, paragraph 24).

25. In that connection, it must be recalled that, as regards the taxation of services on board ships, the Court has already acknowledged that the Sixth Directive does not prohibit Member States from extending the scope of their tax legislation beyond their territorial limits, so long as they do not encroach on the jurisdiction of other States (Case 283/84 Trans Tirreno Express [1986] ECR 231, and Case C‑30/89 Commission v France [1990] ECR I-691, paragraph 18). Such considerations also apply in relation to taxation of supplies of goods.

18 IT SHOULD BE NOTED THAT A TRANSPORT OPERATION OF THE TYPE IN QUESTION IN THE CASE PENDING BEFORE THE NATIONAL COURT DOES NOT GIVE RISE TO ANY CONFLICT OF JURISDICTION AS FAR AS THE CHARGING OF VAT IS CONCERNED WHERE THE SHIP EFFECTING THE TRANSPORT PLIES BETWEEN TWO POINTS WITHIN A SINGLE MEMBER STATE AND WHERE THE ROUTE CHOSEN , EVEN IF PART OF IT IS OUTSIDE THE NATIONAL TERRITORY , DOES NOT PASS THROUGH ANY AREA FALLING UNDER THE NATIONAL SOVEREIGNTY OF ANOTHER STATE .

19. According to settled case-law, the essential feature of an employment relationship resides in the fact that for a certain period of time a person performs services for and under the direction of another person, in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17; Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 32, and Case C-43/99 Leclere and Deaconescu [2001] ECR I-4265, paragraph 55). It is common ground that, in the main proceedings, there was no employment relationship, within the meaning of that case-law, between the defendants and Alpina.

20. Since that service encompasses various actions, it must, in the first place, be determined whether, for VAT purposes, and in particular the interpretation of the provision referred to in the questions referred, Denplan supplies its clients with several distinct and independent services requiring separate assessment or a single complex service comprising several elements (see, to that effect, in particular Case C‑41/04 Levob Verzekeringen and OV Bank [2005] ECR I‑9433, paragraphs 18 and 20; Case C‑425/06 Part Service [2008] ECR I‑897, paragraphs 48 and 49; and Case C‑461/08 Don Bosco Onroerend Goed [2009] ECR I‑11079, paragraph 34).

49. That question is of particular importance, for VAT purposes, for applying the rate of tax or the exemption provisions in the Sixth Directive (see Case C-349/96 CPP [1999] ECR I-973, paragraph 27 and Case C-41/04 Levob Verzerkeringen and OV Bank [2005] ECR I-9433, paragraph 18).

69 In the second place, as regards the substance, it should be borne in mind that the Member States are entitled, while complying with EU law, to define the scope and the organisation of their SGEIs, and may take into account, in particular, objectives pertaining to their national policy (see, to that effect, judgment of 21 December 2011, ENEL, C‑242/10, EU:C:2011:861, paragraph 50 and the case-law cited).

24. It must be borne in mind that measures taken by a Member State, the aim or effect of which is to treat goods coming from other Member States less favourably and, in the absence of harmonisation of national legislation, obstacles to the 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, even if those rules apply to all products alike, must be regarded as ‘measures having equivalent effect to quantitative restrictions on imports’ for the purposes of Article 28 EC (see to that effect, Case 120/78 Rewe-Zentral (Cassis de Dijon) [1979] ECR 649, paragraphs 6, 14 and 15; Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 8; and Case C-322/01 Deutscher Apothekerverband [2003] ECR I-14887, paragraph 67). Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept (see Case C-110/05 Commission v Italy [2009] ECR I-0000, paragraph 37).

15CONSEQUENTLY , THE FIRST QUESTION SHOULD BE ANSWERED TO THE EFFECT THAT THE CONCEPT OF ' ' MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS ' ' CONTAINED IN ARTICLE 30 OF THE TREATY IS TO BE UNDERSTOOD TO MEAN THAT THE FIXING OF A MINIMUM ALCOHOL CONTENT FOR ALCOHOLIC BEVERAGES INTENDED FOR HUMAN CONSUMPTION BY THE LEGISLATION OF A MEMBER STATE ALSO FALLS WITHIN THE PROHIBITION LAID DOWN IN THAT PROVISION WHERE THE IMPORTATION OF ALCOHOLIC BEVERAGES LAWFULLY PRODUCED AND MARKETED IN ANOTHER MEMBER STATE IS CONCERNED .

25 As a preliminary point, it should be noted that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. The Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 71 and the case-law cited).

42. Regarding the issue whether reduced transport fares such as those granted by certain Länder in Austria come within the scope of the Treaties for the purposes of Article 18(1) TFEU, it should be observed that, in holding that access to training comes within the scope of EU law, the Court has held previously that national aid granted to students to cover their maintenance costs, social benefits provided for by a national, non-contributory scheme and so-called tideover allowances provided for by national legislation intended for unemployed youth seeking their first employment all come within the scope thereof (see Bidar , paragraph 42; Grzelczyk , paragraph 46, and D’Hoop , paragraphs 34 and 35).

46 It follows from the foregoing that Articles 6 and 8 of the Treaty preclude entitlement to a non-contributory social benefit, such as the minimex, from being made conditional, in the case of nationals of Member States other than the host State where they are legally resident, on their falling within the scope of Regulation No 1612/68 when no such condition applies to nationals of the host Member State. The second question referred for a preliminary ruling

30. It should be observed, however, that a provision such as the one at issue in the main proceedings, which allows for the renewal of fixed-term contracts to replace other employees who are momentarily unable to perform their tasks, is not per se contrary to the FTW Framework Agreement. The temporary replacement of another employee in order to satisfy, in essence, the employer’s temporary staffing requirements may, in principle, constitute an objective reason under clause 5(1)(a) of the FTW Framework Agreement (see, to that effect, Angelidaki and Others , paragraph 102).

81 It should be noted at the outset that, as the Court has held on many occasions, since the court reviewing the legality of an act cannot rule ultra petita, it cannot grant an annulment which goes beyond that sought by the applicant (see judgments of 19 January 2006, Comunità montana della Valnerina v Commission, C‑240/03 P, EU:C:2006:44, paragraph 43 and the case-law cited, and of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 52).

43. It must be recalled first that since it would be ultra vires for the Community judicature to rule ultra petita (see Joined Cases 46/59 and 47/59 Meroni v High Authority [1962] ECR 411, at page 419, and Case 37/71 Jamet v Commission [1972] ECR 483, paragraph 12), the scope of the annulment which it pronounces may not go further than that sought by the applicant (Case C‑310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I‑5363, paragraph 52).

182 Finally, although the authority erga omnes exerted by annulling judgments of the EU judicature attaches to both their operative part and their ratio decidendi, it cannot entail annulment of an act not challenged before the EU judicature even if that act is vitiated by the same illegality (judgments in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 54, and Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 26).

45. Dans le cadre d’une procédure en manquement en vertu de l’article 226 CE, il incombe à la Commission d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir arrêt du 26 avril 2005, Commission/Irlande, C‑494/01, Rec. p. I‑3331, point 41 et jurisprudence citée).

41. It is to be remembered that in proceedings under Article 226 EC for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court the information needed 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, in particular, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6, and Case C-408/97 Commission v Netherlands [2000] ECR I-6417, paragraph 15).

71 Consequently, it is for the referring court to ascertain, in particular, whether, in circumstances such as those of the main proceedings, it was not actually possible for the Land of Berlin, in its capacity as an employer, to guarantee to Ms H. that she could return to her post at the end of her parental leave and, if so, to ensure that she would then be assigned, as required by Clause 5(1) of the revised Framework Agreement, an equivalent or similar post consistent with her employment contract or employment relationship, so as to enable her to continue a probationary period there under conditions that were, moreover, in compliance with the requirements arising from Clause 5(2) of that framework agreement (see, by analogy, judgment of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraph 51).

36 It is clear from the settled case-law of the Court of Justice that the partial annulment of an EU act is possible only if the elements whose annulment is sought may be severed from the remainder of the act. In that regard, the Court of Justice has repeatedly held that the requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (judgment of 12 November 2015, United Kingdom v Parliament and Council, C‑121/14, EU:C:2015:749, paragraph 20 and the case-law cited).

20. It is apparent from the settled case-law of the Court that the partial annulment of an EU act is possible only if the elements whose annulment is sought may be severed from the remainder of the act (see judgments in Commission v Council , C‑29/99, EU:C:2002:734, paragraph 45, and Germany v Commission , C‑239/01, EU:C:2003:514, paragraph 33). The Court has repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance (see judgment in Commission v Parliament and Council , C‑427/12, EU:C:2014:170, paragraph 16 and the case-law cited).

22 As the Court of Justice observed in paragraph 22 of the judgment in Siesse, the purpose of a levy such as the surcharge at issue in the main proceedings, which is intended to penalise traders who have failed to comply with the prescribed formalities and time-limits, does not appear to be contrary to Community law. In the absence of such a measure, failure to comply with the prescribed formalities would in fact be without consequence for a trader authorised to regularise his position after the expiry of the time-limits. The penalty incurred is thus intended to encourage traders to act within the periods laid down.

45. That finding is supported by the interpretation already given to that provision by the Court in Case C-321/96 Mecklenburg [1998] ECR I-3809, paragraphs 19 to 22. In particular, the Court thus held in paragraph 20 of that judgment that the Community legislature purposely avoided giving any definition of "information relating to the environment" which could lead to the exclusion of any of the activities engaged in by the public authorities.

20 Secondly, the use in Article 2(a) of the directive of the term `including' indicates that `administrative measures' is merely an example of the `activities' or `measures' covered by the directive. As the Advocate General pointed out in paragraph 15 of his Opinion, the Community legislature purposely avoided giving any definition of `information relating to the environment' which could lead to the exclusion of any of the activities engaged in by the public authorities, the term `measures' serving merely to make it clear that the acts governed by the directive included all forms of administrative activity.

45 Where the basic patent and the marketing authorization are held by different persons and the patent holder is unable to provide the competent national authorities with a copy of that authorization, granted by the authorities of a Member State, in accordance with Article 8(1)(b) of the Regulation, the application for a certificate must not be refused on that ground alone. By simple cooperation, the national authority granting the certificate can obtain a copy of the marketing authorization from the national authority which issued it (see, to that effect, Case C-201/94 The Queen v Medicines Control Agency ex parte Smith and Nephew [1996] ECR I-5819, paragraph 28). If that were not the case, the entitlement to the certificate conferred by Article 6 of the Regulation on the basic patent holder would be rendered nugatory.

32. The Framework Agreement is thus in line with the fundamental social rights enshrined in paragraph 16 of the Community Charter of the Fundamental Social Rights of Workers on equal treatment for men and women, to which the Framework Agreement refers, inter alia, at paragraph 4 of its general considerations, and which is also mentioned in the first paragraph of Article 151 TFEU, social rights which are associated with the improvement of living and working conditions and with the existence of proper social protection for workers, in the present case those who have applied for or taken parental leave (see, to that effect, Meerts , paragraph 37; Case C‑486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols [2010] ECR I‑3527, paragraph 52; and Chatzi , paragraph 36).

36. In accordance with clause 1.1 of the Framework Agreement, parental leave is designed ‘to facilitate the reconciliation of parental and professional responsibilities for working parents’, an objective set, as paragraph 4 of the general considerations in the Framework Agreement recalls, by point 16 of the Community Charter of the Fundamental Social Rights of Workers, adopted at the European Council meeting held in Strasbourg on 9 December 1989.

24. A preliminary point to note is that the conditions for payment of a retirement pension and the conditions governing termination of employment are separate issues (see, to this effect, Case 152/84 Marshall [1986] ECR 723, paragraph 32).

19 As regards the latter principle, the Court has held that it is compatible with Community law to lay down reasonable limitation periods for bringing proceedings in the interests of legal certainty which protects both the taxpayer and the administration concerned (see Rewe, paragraph 5, Comet, paragraphs 17 and 18, and Denkavit Italiana, paragraph 23, all cited above; see also Case C-261/95 Palmisani v INPS [1997] ECR I-4025, paragraph 28, and Case C-90/94 Haahr Petroleum v benrå Havn and Others [1997] ECR I-4085, paragraph 48). Such time-limits are not liable to render virtually impossible or excessively difficult the exercise of rights conferred by Community law. In that regard, a time-limit of three years under national law, reckoned from the date of the contested payments, appears reasonable (see the judgment of today's date in Case C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951, paragraph 35).

17 THIS DOES NOT APPLY TO THE FIXING OF A REASONABLE PERIOD OF LIMITATION WITHIN WHICH AN ACTION MUST BE BROUGHT .

35. Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept ( Commission v Italy , paragraph 37, and Ker-Optika , paragraph 50).

27 In that regard, it should be noted that, it is true that, under the transitional arrangements for tax applicable to trade within the European Union, the identification of taxable persons subject to VAT by means of an individual number also facilitates the determination of the Member State in which the final consumption of the goods delivered takes place (judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 57, and 14 March 2013, Ablessio, C‑527/11, EU:C:2013:168, paragraph 19). Article 214(1)(b) of the VAT Directive requires Member States to take all measures necessary to identify by means of an individual number, in particular, every taxable person or non-taxable legal person who makes intra-Community acquisitions.

19. In that regard, the Court has already held that the allocation of a VAT identification number provides proof of the tax status of the taxable person for the purposes of applying VAT and simplifies the inspection of taxable persons with a view to ensuring the correct collection of the tax. Under the transitional arrangements for tax applicable to trade within the European Union, the identification of taxable persons subject to VAT by means of an individual number also facilitates the determination of the Member State in which the final consumption of the goods delivered takes place (see, to that effect, Case C-273/11 Mecsek-Gabona [2012] ECR I-0000, paragraphs 57 and 60, and Case C-587/10 VSTR [2012] ECR I-0000, paragraph 51).

50 First, it should be pointed out that, in the present case, while Directive 90/434 lays down as a principle the deferral of taxation of the capital gains relating to the assets transferred and allows that deferral to be refused only on one condition, namely when the planned operation has as its objective tax evasion or tax avoidance (see, to that effect, judgment of 17 July 1997, Leur-Bloem, C‑28/95, EU:C:1997:369, paragraph 45), the legislation at issue in the main proceedings refuses in a general way to grant that deferral unless the taxpayer first complies with the procedural and substantive requirements under that legislation.

56. Second, it must be pointed out that the decision to tax income from Belgium in the other Member State, or the choice of the level at which it is to be taxed, depends not on the Kingdom of Belgium but on the tax rules laid down by the other Member State ( Commission v Spain , paragraph 64, and Commission v Germany , paragraph 69).

64. The choice as to whether to tax income from Spain in the other Member State or the level at which it is to be taxed, depends not on the Kingdom of Spain but on the tax rules laid down by the other Member State. The Kingdom of Spain is therefore wrong to argue that deduction of the tax withheld at source in Spain against the tax due in the other Member State, pursuant to the provisions of conventions for the avoidance of double taxation, allows in all cases for the difference in treatment arising from the application of national legislation to be neutralised (see, Commission v Italy , paragraph 39).

93. Indeed, the Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with European Union law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may even have contributed ( Grzelczyk , paragraph 53).

45. It must be borne in mind in that regard that, according to settled case-law, the concept of ‘worker’ within the meaning of Article 39 EC of the Treaty has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17; Case C‑456/02 Trojani [2004] ECR I-0000, paragraph 15; and Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 12).

12. According to settled case-law, the concept of ‘worker’ within the meaning of Article 48 of the Treaty has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17, Case C-3/90 Bernini [1992] ECR I-1071, paragraph 14, and Case C-456/02 Trojani [2004] ECR I-0000, paragraph 15).

46 It must be pointed out that the action brought by Bank Saderat Iran falls within the scope of the second paragraph of Article 275 TFEU (judgments in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 50, and Council v Bank Mellat, C‑176/13 P, EU:C:2016:96, paragraph 48).

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

56 So, although Article 176 of the Treaty requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act, that article, contrary to what the Court of First Instance held in paragraphs 69, 72 and 85, does not mean that the Commission must, at the request of interested parties, re-examine identical or similar decisions allegedly affected by the same irregularity, addressed to addressees other than the applicant.

61 The Court has also held that if, on the basis of those factors, the competent authority finds that the relevant class of persons, or at least a significant proportion thereof, identify goods as originating from a particular undertaking because of the trade mark, it must in any event hold that the requirement for registering the mark laid down in Article 3(3) of the Directive is satisfied (Windsurfing Chiemsee, paragraph 52).

57 Therefore, it is for the Court of Justice to determine whether EUIPO’s argument relates to errors allegedly made by the General Court in its findings with regard to the national legislation at issue, which would be open to review by the Court of Justice on the basis of the considerations set out in the preceding paragraph of the present judgment (see, to that effect, judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 54).

54. In the present case, the appellant has claimed that the General Court interpreted Article 8(3) of the CPI in a way that was inconsistent with the wording of that provision and with academic writings concerning it that were produced before that Court. It is appropriate to examine whether its argument relates to errors allegedly made by the General Court in its findings with regard to the national legislation at issue, which would be open to review by the Court of Justice on the basis of the considerations set out in the preceding paragraph.

30. With respect to the conferral of an implementing power, Article 291(2) TFEU states that legally binding Union acts are to confer such power on the Commission or, in duly justified specific cases and the cases provided for in Articles 24 TEU and 26 TEU, on the Council, where uniform conditions for implementing those acts are needed. In the exercise of the implementing power conferred on it, the institution concerned must provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all the Member States (see judgment in Commission v Parliament and Council , C‑427/12, EU:C:2014:170, paragraph 39).

29. As the Court has already held (Case 126/86 Giménez Zaera [1987] ECR 3697, paragraph 11, and Joined Cases C-78/90 to C-83/90 Compagnie commerciale de l’Ouest and Others [1992] ECR I-1847, paragraphs 17 and 18), Articles 2 and 3 EC set out general aims made explicit by other provisions of the Treaty. They cannot be applied independently of the more specific provisions of the Treaty mentioned in the question referred.

11 WITH REGARD TO THE PROMOTION OF AN ACCELERATED RAISING OF THE STANDARD OF LIVING, IN PARTICULAR, IT SHOULD THEREFORE BE STATED THAT THIS WAS ONE OF THE AIMS WHICH INSPIRED THE CREATION OF THE EUROPEAN ECONOMIC COMMUNITY AND WHICH, OWING TO ITS GENERAL TERMS AND ITS SYSTEMATIC DEPENDENCE ON THE ESTABLISHMENT OF THE COMMON MARKET AND PROGRESSIVE APPROXIMATION OF ECONOMIC POLICIES, CANNOT IMPOSE LEGAL OBLIGATIONS ON MEMBER STATES OR CONFER RIGHTS ON INDIVIDUALS .

110. Such an interpretation does not permit persons affected by decisions ordering their expulsion the safeguard of an exhaustive examination of the expediency of the measure in question and does not meet the requirements of sufficiently effective protection (see, to that effect, Case 222/84 Johnston [1986] ECR 1651, paragraph 17, and Case 222/86 Heylens and Others [1987] ECR 4097, paragraphs 14 and 15). It would, indeed, be likely to deprive Article 9(1) of Directive 64/221 of its practical effect.

34 In the case of transactions which, such as those at issue in the main proceedings, form a chain of two successive supplies that have given rise to only a single intra-Community transport, it is clear from the Court’s case-law, first, that the intra-Community transport can be ascribed to only one of the two supplies, which, therefore, will alone be exempted under Article 138(1) of the VAT Directive (see, to that effect, judgment of 6 April 2006, EMAG Handel Eder, C‑245/04, EU:C:2006:232, paragraph 45).

45. The answer to the second and fourth questions must therefore be that, where two successive supplies of the same goods, effected for consideration between taxable `persons acting as such, gives rise to a single intra-Community dispatch or a single intra-Community transport of those goods, that dispatch or transport can be ascribed to only one of the two supplies, which alone will be exempted from tax under the first subparagraph of Article 28c(A)(a) of the Sixth Directive. That interpretation holds good regardless of which taxable person – the first vendor, the intermediary acquiring the goods or the second person acquiring the goods – has the right to dispose of the goods during that dispatch or transport. Question 1

63. En ce qui concerne le bien-fondé du deuxième moyen, il convient de rappeler que l’article 8 de la directive 93/42, intitulé «Clause de sauvegarde», à son paragraphe 1, impose aux États membres ayant constaté des risques pour «la santé et/ou la sécurité des patients, des utilisateurs ou, le cas échéant, d’autres personnes», risques liés à des dispositifs médicaux certifiés conformes à cette directive, de prendre toutes les mesures utiles provisoires pour retirer ces dispositifs médicaux du marché et pour interdire ou restreindre leur mise sur le marché ou leur mise en service. Dans une telle hypothèse, l’État membre concerné est tenu, également selon l’article 8, paragraphe 1, de ladite directive, de notifier immédiatement à la Commission les mesures adoptées, en précisant les raisons pour lesquelles celles-ci ont été prises et, notamment, si la non-conformité avec cette même directive résulte du «non-respect des exigences essentielles visées à l’article 3», ce dernier article renvoyant à l’annexe I de la directive 93/42 (voir, en ce sens, arrêts Medipac-Kazantzidis, C‑6/05, EU:C:2007:337, point 46, et Nordiska Dental, C‑288/08, EU:C:2009:718, point 24).

34 The completeness of that system of conflict rules has the effect of divesting the legislature of each Member State of the power to determine at its discretion the ambit and the conditions for the application of its national legislation so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (judgments of 10 July 1986, Luijten, 60/85, EU:C:1986:307, paragraph 14, 5 November 2014, Somova, C‑103/13, EU:C:2014:2334, paragraph 54, and 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraph 35).

35. The completeness of that system of conflict rules has the effect of divesting the legislature of each Member State of the power to determine at its discretion the ambit and the conditions for the application of its national legislation so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (judgments in Luijten , 60/85, EU:C:1986:307, paragraph 14, and Somova , C‑103/13, EU:C:2014:2334, paragraph 54).

42 With regard to the referring court’s question mentioned in paragraph 19 above, it should be noted that the fact that it is possible for private persons with an individual right deriving from EU law, such as, in the present case, employees, to claim compensation where their rights are infringed by a breach of EU law attributable to a Member State (see, to that effect, judgments in Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 33, and Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 20) cannot alter the obligation the national court is under to uphold the interpretation of national law that is consistent with Directive 2000/78 or, if such an interpretation is not possible, to disapply the national provision that is at odds with the general principle prohibiting discrimination on ground of age, as given concrete expression by that directive, or justify that court giving precedence, in the dispute before it, to the protection of the legitimate expectations of a private person, namely in this case the employer, who has complied with national law.

21 It must be observed, in the context of competition law, first that the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed and, secondly, that employment procurement is an economic activity.

38 SO FAR AS THAT CLAIM IS CONCERNED, IT MUST BE POINTED OUT THAT THE RULES REGARDING THE MANNER IN WHICH THE COMMUNITY INSTITUTIONS ARRIVE AT THEIR DECISIONS ARE LAID DOWN IN THE TREATY AND ARE NOT AT THE DISPOSAL OF THE MEMBER STATES OR OF THE INSTITUTIONS THEMSELVES .

77. Furthermore, it follows from Article 86(1) EC that the Member States must not maintain in force national legislation which permits the award of public service contracts without a call for tenders since such an award infringes Article 43 EC or 49 EC or the principles of equal treatment, non-discrimination and transparency (see, by analogy, Parking Brixen , paragraph 52, and ANAV , paragraph 23).

50. It is for the concession-granting public authority to evaluate, subject to review by the competent courts, the appropriateness of the detailed arrangements of the call for competition to the particularities of the public service concession in question. However, a complete lack of any call for competition in the case of the award of a public service concession such as that at issue in the main proceedings does not comply with the requirements of Articles 43 EC and 49 EC any more than with the principles of equal treatment, non-discrimination and transparency.

61. That obligation to interpret national law in conformity with Community law concerns all the provisions of national law and is limited by the general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem (see, to that effect, Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 13; Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 110; Impact , paragraph 100; and Case C‑378/07 Angelidaki and Others [2009] ECR I‑0000, paragraph 199).

24. However, as regards the sale of building land, the Court has already stated that a relevant assessment criterion is the fact that the party has taken active steps to market property by mobilising resources similar to those deployed by producers, traders or persons supplying services within the meaning of Article 4(2) of the Sixth Directive, such as, in particular, the carrying out on that land of preparatory work to make development possible, and the deployment of proven marketing measures (see, to that effect, judgment in Słaby and Others , C‑180/10 and C‑181/10, EU:C:2011:589, paragraphs 39 and 40). Such initiatives do not normally fall within the scope of the management of private assets so that the sale of land designated for development in such a situation cannot be regarded as the mere exercise of the right of ownership by its holder (see, to that effect, judgment in Słaby and Others , C‑180/10 and C‑181/10, EU:C:2011:589, paragraph 41).

40. Such active steps may consist, inter alia, in the carrying out on that land of preparatory work to make development possible, and the deployment of proven marketing measures.

89. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 90).

29. Furthermore, the Court has already held that where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I-7063, paragraphs 27 to 49; Manninen , paragraphs 29 to 55, and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 55).

42. In that respect, it should be noted that, in paragraphs 28 and 21 respectively of the judgments in Bachmann and Commission v Belgium , the Court of Justice acknowledged that the need to preserve the cohesion of a tax system might justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. However, for an argument based on such justification to succeed, a direct link had to be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, to that effect, Case C-484/93 Svensson and Gustavsson [1995] ECR I‑3955, paragraph 18; Asscher , paragraph 58; ICI , paragraph 29; Case C-55/98 Vestergaard [1999] ECR I‑7641, paragraph 24; Case C-436/00 X and Y [2002] ECR I-10829, paragraph 52). As is shown by paragraphs 21 to 23 of the judgment in Bachmann and paragraphs 14 to 16 of the judgment in Commission v Belgium , those judgments are based on the finding that, in Belgian law, there was a direct link, in relation to the same taxpayer liable to income tax, between the ability to deduct insurance contributions from taxable income and the subsequent taxation of sums paid by the insurers.

39 The purpose of Directive 83/643, cited above, is to lay down various rules for the carrying out of physical inspections of goods and the completion of the required administrative formalities upon crossing a frontier with a view, according to its preamble, to reducing the waiting time at frontiers and ensuring a smoother flow of goods traffic between Member States (see Case 190/87 Oberkreisdirektor des Kreises Borken v Moorman [1988] ECR 4689, paragraph 26).

25 As a preliminary point, it should be noted that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. The Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 71 and the case-law cited).

71. It must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. The Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (see, inter alia, judgment in Feryn , C‑54/07, EU:C:2008:397, paragraph 19 and the case-law cited).

21 The Court expressly emphasized in its judgments in Cases 184/85 and 193/85 the protectionist nature of a duty such as the national tax on consumption with regard to the home-produced table fruit of the Member State in question.

65 As regards, secondly, the effects of the draft revised agreement, it is settled case-law that the fact that an act of the European Union, such as an international agreement concluded by it, is liable to have implications for international trade is not enough for that act to be required to be classified as falling within the common commercial policy. In addition to the condition, examined in paragraphs 52 to 64 of the present judgment, that such an act must be essentially intended to promote, facilitate or govern such trade, it must also have direct and immediate effects on such trade (judgments of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 51, and of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraph 57, and Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 61).

57. Moreover, it is settled-case law that the mere fact that an act of the European Union is liable to have implications for international trade is not enough for it to be concluded that the act must be classified as falling within the common commercial policy. On the other hand, an EU act falls within that policy if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade (see, inter alia, Daiichi Sankyo and Sanofi-Aventis Deutschland , paragraph 51 and the case-law cited).

31 On the other hand, the reorganisation of structures of the public administration or the transfer of administrative functions between public administrative authorities does not constitute a transfer of an undertaking within the meaning of the Directive. In those cases the transfer concerns activities involving the exercise of public authority (Case C-298/94 Henke v Gemeinde Schierke and Verwaltungsgemeinschaft Brocken [1996] ECR I-4989, paragraphs 14 and 17).

44. However, it must be emphasised that it is solely for the national court, which has direct knowledge of the detailed procedural rules applicable, to ascertain whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics (see judgments in Asturcom Telecomunicaciones , EU:C:2009:615, paragraph 50, and Agrokonsulting-04 , EU:C:2013:432, paragraph 39).

39. So far as concerns, first of all, the principle of equivalence, it is apparent from the Court’s case-law that observance of that principle requires that the national rule at issue be applied without distinction, whether the action is based on rights which individuals derive from European Union law or whether it is based on an infringement of national law, where the purpose and cause of action are similar. It is for the national court, which has direct knowledge of the detailed procedural rules applicable, to ascertain whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics (see, to that effect, Pontin , paragraph 45 and the case-law cited, and Case C-591/10 Littlewoods Retail and Others [2012] ECR I‑0000, paragraph 31).

14 In interpreting Article 3(f), the second paragraph of Article 5 and Article 85 of the Treaty it should be noted that Article 85, read in isolation, relates only to the conduct of undertakings and does not cover measures adopted by Member States by legislation or regulations. However, the Court has consistently held that Article 85, read in conjunction with Article 5 of the Treaty, requires the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings. By virtue of the same case-law, such is the case where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects or deprives its own legislation of its official character by delegating to private traders responsibility for taking economic decisions affecting the economic sphere (see Case 267/86 Van Eycke v ASPA [1988] ECR 4769, paragraph 16).

19 The Court has also held, in the judgments in Case C-369/88 Delattre [1991] ECR I-1487, paragraph 22, and in Monteil and Samanni, cited above, paragraph 17, that, even if it comes within the scope of other, less stringent Community rules, such as the rules on cosmetic products, a product must be held to be a medicinal product and be made subject to the corresponding rules if it is presented as possessing therapeutic or prophylactic properties or if it is intended to be administered with a view to restoring, correcting or modifying physiological functions.

17 In those circumstances, even if it comes within the definition contained in Article 1(1) of Directive 76/768, a product must nevertheless be treated as a "medicinal product" and be made subject to the corresponding rules if it is presented as possessing properties for the treatment or prevention of illness or disease or if it is intended to be administered with a view to restoring, correcting or modifying physiological functions.

53 In that respect, it must be recalled that the Member States must, when exercising their powers to determine the conditions referred to in the preceding paragraph, respect the basic freedoms guaranteed by the TFEU (see, by analogy, judgment of 27 June 2013, Nasiopoulos, C‑575/11, EU:C:2013:430, paragraph 20 and the case-law cited).

40 As regards the condition of the existence of a threat to public security, it must be observed that, in contrast inter alia to Article 27(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 7, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), which requires that a measure taken in the name of public security must be based exclusively on the personal conduct of the individual concerned and that that conduct must represent a ‘genuine, present and sufficiently serious threat’ to that fundamental interest of society (see, inter alia, judgments of 22 May 2012, I, C‑348/09, EU:C:2012:300, paragraph 30; of 13 September 2016, Rendón Marin, C‑165/14, EU:C:2016:675, paragraph 84; and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 40), it is apparent from Article 6(1)(d) of Directive 2004/114, read in the light of recital 14 of that directive, that the admission of a third country national may be refused if the national authorities competent to process that national’s application for a visa consider, on the basis of an assessment of the facts, that he is a threat, if only ‘potential’, to public security. That assessment may thus take into account not only the personal conduct of the applicant but also other elements relating, in particular, to his professional career.

30. Under the second subparagraph of Article 27(2) of Directive 2004/38, the issue of any expulsion measure is conditional on the requirement that the personal conduct of the individual concerned must represent a genuine, present threat affecting one of the fundamental interests of society or of the host Member State, which implies, in general, the existence in the individual concerned of a propensity to act in the same way in the future.

59. As regards possible justifications for such unequal treatment, it is settled law that grounds of an economic nature, such as the objective of ensuring continuity, financial stability or a proper return on past investments for operators who obtained licences under the 1999 tendering procedure, cannot be accepted as overriding reasons in the public interest, justifying a restriction of a fundamental freedom guaranteed by the Treaty ( Commission v Italy , paragraph 35 and the case‑law cited, and Case C‑384/08 Attanasio Group [2010] ECR I‑2055, paragraphs 53 to 56).

34. According to equally settled case‑law, that distinctive character must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, second, by reference to the relevant public’s perception of the mark ( Procter & Gamble v OHIM , paragraph 33; Case C‑25/05 P Storck v OHIM [2006] ECR I‑5719, paragraph 25; Henkel v OHIM , paragraph 35; and Eurohypo v OHIM , paragraph 67).

25. As regards the first part of the first ground of appeal, it is settled case-law that the distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation No 40/94, must be assessed, firstly, by reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the perception of them by the relevant public, which consists of average consumers of the goods or services in question who are reasonably well informed and reasonably observant and circumspect (see, in particular, Joined Cases C-456/01 P and C-457/01 P Henkel v OHIM [2004] ECR I‑5089, paragraph 35, and Case C-173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I-0000, paragraph 25).

28. Accordingly, that special rule — which lays down stricter conditions for being allowed to deduct business expenses than those laid down in the general rule and the scope of which has not been delimited with precision beforehand — is liable both to dissuade Belgian taxpayers from exercising their right to the freedom to provide services and from making use of the services of providers established in another Member State and to dissuade those providers from offering their services to recipients established in Belgium (see, to that effect, Case C-422/01 Skandia and Ramstedt [2003] ECR I-6817, paragraph 28 and the case-law cited).

28 However, it is clear from settled case-law, that where such measures apply to any person or undertaking carrying on an activity in the territory of the host Member State, they may be justified where they serve overriding requirements relating to the public interest, are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it (see Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Gebhard, cited above, paragraph 37; Case C-212/97 Centros [1999] ECR I-1459, paragraph 34; Pfeiffer, cited above, paragraph 19; Case C-424/97 Haim [2000] ECR I-5123, paragraph 57; Mac Quen and Others, cited above, paragraph 26, and Commission v Italy, cited above, paragraph 23).

57 According to the Court's case-law, national measures which restrict the exercise of fundamental freedoms guaranteed by the Treaty can be justified only if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see, in particular, Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, paragraph 37; and Case C-212/97 Centros [1999] ECR I-1459, paragraph 34).

30 On the other hand, where goods or services acquired by a taxable person are used for purposes of transactions that are exempt or do not fall within the scope of VAT, no output tax can be collected or input tax deducted (see, to that effect, judgment of 29 October 2009, SKF, C‑29/08, EU:C:2009:665, paragraph 59).

16. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the FEU Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations (see, inter alia, Case 211/81 Commission v Denmark [1982] ECR 4547, paragraph 9).

9 AS THE COURT HELD IN ITS JUDGMENT OF 17 FEBRUARY 1970 IN CASE 31/69 COMMISSION V ITALY ECR 25 , THE OPPORTUNITY FOR THE MEMBER STATE CONCERNED TO SUBMIT ITS OBSERVATIONS CONSTITUTES AN ESSENTIAL GUARANTEE REQUIRED BY THE TREATY AND , EVEN IF THE MEMBER STATE DOES NOT CONSIDER IT NECESSARY TO AVAIL ITSELF THEREOF , OBSERVANCE OF THAT GUARANTEE IS AN ESSENTIAL FORMAL REQUIREMENT OF THE PROCEDURE UNDER ARTICLE 169 .

29 It is also necessary to point out that the use, for business or private purposes, to which a taxable person actually puts a capital item need be taken into account for the purpose of determining how that item has been assigned only if the taxable person requests the right to deduct, wholly or in part, the input VAT paid in respect of the acquisition. In such a case, it is necessary to determine whether the goods have been acquired by the taxable person acting, at least in part, as such, that is to say, for the purposes of his economic activities within the meaning of Article 4 of the Sixth Directive. This is a question of fact to be determined in the light of all the circumstances of the case, including the nature of the goods concerned and the period between the acquisition of the goods and their use for the purposes of the taxable person's economic activities (see, to this effect, Lennartz, paragraphs 21 and 35).

42 It is for the national court to verify, in accordance with the rules of evidence of national law, provided the effectiveness of EU law is not undermined, whether the factors constituting an abusive practice are present in the case before it (see judgments of 14 December 2000 in Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 54; of 21 July 2005 in Eichsfelder Schlachtbetrieb, C‑515/03, EU:C:2005:491, paragraph 40; of 21 February 2006 in Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 76; and of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 34).

54 It is for the national court to establish the existence of those two elements, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined (see, to that effect, in particular, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633, paragraphs 17 to 25 and 35 to 39; Case 222/82 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraphs 17 to 21; and Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECR I-389, paragraphs 49 to 51, and Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others v Minister van Volkshuisvesting [2000] ECR I-4475, paragraph 41).

51 It follows from the principles resulting from paragraphs 40 to 43 above that the conditions laid down in the national laws to which Article 6(1) of Directive 93/13 refers may not adversely affect the substance of the right that consumers acquire under that provision not to be bound by a term deemed to be unfair (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 71).

27. That consideration is particularly important in the field of education in view of the aims pursued by Article 3(1)(q) EC and the second indent of Article 149(2) EC, namely, inter alia, encouraging mobility of students and teachers (see D’Hoop , paragraph 32, and Commission v Austria , paragraph 44).

44. The opportunities offered by the Treaty relating to free movement are not fully effective if a person is penalised merely for using them. That consideration is particularly important in the field of education in view of the aims pursued by Article 3(1)(q) EC and the second indent of Article 149(2) EC, namely encouraging mobility of students and teachers (see Case C-224/98 D’Hoop [2002] ECR I-6191, paragraphs 30 to 32).

81. Admittedly, participation by the Parliament in the legislative process is the reflection, at Union level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly (see, to that effect, Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 33, and Titanium dioxide , paragraph 20).

38. As observed in paragraph 29 of this judgment, Article 1(1) of Directive 89/665 requires Member States to guarantee that decisions of contracting authorities can be subjected to effective review which is as swift as possible. In order to attain the objective of rapidity pursued by that directive, Member States may impose limitation periods for actions in order to require traders to challenge promptly preliminary measures or interim decisions taken in public procurement procedures (see, to that effect, Universale-Bau and Others , paragraphs 75 to 79; Case C‑230/02 Grossmann Air Service [2004] ECR I‑1829, paragraphs 30 and 36 to 39; and Case C‑241/06 Lämmerzahl [2007] ECR I‑8415, paragraphs 50 and 51).

76. Moreover, the setting of reasonable limitation periods for bringing proceedings must be regarded as satisfying, in principle, the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty (see, by analogy, in relation to the principle of the effectiveness of Community law, Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 28, and Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 33).

28. In that regard, it is clear from the case-law that the presumption of relevance of questions referred for a preliminary ruling cannot be rebutted by the simple fact that one of the parties to the main proceedings contests certain facts, the accuracy of which is not a matter for the Court to determine and on which the delimitation of the subject‑matter of those proceedings depend ( Cipolla and Others , paragraph 26, and van der Weerd and Others , paragraph 23).

68. Moreover, the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to air carriers’ rights to seek compensation from any person who caused the delay, including third parties, as Article 13 of the regulation provides. Such compensation may accordingly reduce or even remove the financial burden borne by carriers in consequence of those obligations. Nor does it appear unreasonable for those obligations initially to be borne, subject to the abovementioned right to compensation, by the air carriers with which the passengers concerned have a contract of carriage that entitles them to a flight that should be neither cancelled nor delayed ( IATA and ELFAA , paragraph 90).

90. Moreover, the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to air carrier’s rights to seek compensation from any person, including third parties, in accordance with national law, as Article 13 of the regulation provides. Such compensation accordingly may reduce or even remove the financial burden borne by the carriers in consequence of those obligations. Nor does it appear unreasonable for those obligations initially to be borne, subject to the abovementioned right to compensation, by the air carriers with which the passengers concerned have a contract of carriage that entitles them to a flight that should be neither cancelled nor delayed.

Il convient également de rappeler que, selon la jurisprudence de la Cour, tant l’existence que la durée d’un comportement anticoncurrentiel doivent, dans la plupart des cas, être inférées d’un certain nombre de coïncidences et d’indices qui, considérés ensemble, peuvent constituer, en l’absence d’une autre explication cohérente, la preuve d’une violation des règles de concurrence (arrêts du 21 septembre 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied/Commission, C‑105/04 P, EU:C:2006:592, points 94 et 95, ainsi que du 21 janvier 2016, Eturas e.a., C‑74/14, EU:C:2016:42, point 36).

55. Thus, where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I‑7063, paragraphs 27 to 49, and Case C-319/02 Manninen [2004] ECR I‑7477, paragraphs 29 to 55).

53. Finally, it should also be noted that in Finnish law the tax credit always corresponds to the amount of the tax actually paid by way of corporation tax by the company which distributes the dividends. Should the tax paid by way of corporation tax turn out to be less than the amount of the tax credit, the difference is charged to the company making the distribution by means of an additional tax.

27. En conséquence, selon une jurisprudence constante de la Cour, l’État membre destinataire d’une décision l’obligeant à récupérer des aides illégales est tenu, en vertu de l’article 288 TFUE, de prendre toutes les mesures propres à assurer l’exécution de cette décision. Il doit parvenir à une récupération effective des sommes dues (arrêts du 5 octobre 2006, Commission/France, C‑232/05, Rec. p. I‑10071, point 42, ainsi que Commission/Pologne, précité, point 55 et jurisprudence citée).

53. It is to be emphasised here that Article 49 EC, as interpreted in paragraph 53 of Vanbraekel and Others , being a directly applicable provision of the Treaty, binds all the authorities of the Member States, including administrative and judicial, which are, therefore, obliged to observe it, and there is no need to adopt domestic implementing measures (see, to that effect, Case 168/85 Commission v Italy [1986] ECR 2945, paragraph 11 and Case C‑412/04 Commission v Italy [2008] ECR I‑619, paragraphs 67 and 68).

68. The fact that the Italian legislature did not adopt such provisions with respect to public contracts for infrastructure works executed by the holder of a building permit or an approved estate plan the value of which is below the threshold for application of Directive 93/37, for cases where the existence of a certain cross-border interest is established, does not call into question the applicability of Articles 43 EC and 49 EC to those contracts.

34 As the Court held in Case 150/80 Elefanten Schuh v Jacqmain [1981] ECR 1671, paragraph 25, Article 17 is intended to lay down itself the conditions as to form which jurisdiction clauses must meet, so as to ensure legal certainty and to ensure that the parties have given their consent.