The evidence submitted to the Court also shows that, in the present case, the subcontracting in question involves the use of social cooperatives which, under the Italian legislation on such cooperatives, benefit from preferential rules in terms of taxation, contributions, remuneration and <mask> and that that legislation specifically aims to facilitate the integration into the labour market of certain disadvantaged persons by making it possible to pay them lower wages than prescribed for other persons doing similar work. It is, however, for the referring court to carry out the necessary checks in that regard.


The applicants in the previous proceedings claim before the Corte costituzionale (Constitutional Court) that the provision at issue is unconstitutional and furthermore contrary to Article 12 of Directive 2011/98. The INPS, as the defendant in the previous proceedings, contends that the questions as to constitutionality should be dismissed, submitting that the childbirth allowance is a premium payment which falls outside the field of <mask> and that it is not intended to meet primary and urgent personal needs. It adds that that directive confers on Member States discretion to exclude from the benefits at issue third-country nationals who do not have long-term resident status, having regard to the limits on the financial resources available. The Presidente del Consiglio dei Ministri (President of the Council of Ministers, Italy), acting as intervener in the previous proceedings, contends that the questions as to constitutionality should be dismissed as inadmissible or, in the alternative, manifestly unfounded. He submits that the childbirth allowance is not intended to meet people’s basic needs and that, under EU law too, only long-term resident status allows the full assimilation of third-country nationals with Union citizens as regards social benefits.


In accordance with Article 91 of Regulation No 883/2004, as amended, read in combination with Article 97 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of <mask> systems (OJ 2009 L 284, p. 1), Regulation No 883/2004 was applicable from 1 May 2010. Under Article 90 of Regulation No 883/2004, all provisions of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971(II), p. 416), pertinent to the main proceedings were repealed and replaced. The equivalent of Article 6 of Regulation No 883/2004 is Article 45(1) of Regulation No 1408/71. The equivalent of Article 52(1) of Regulation No 883/2004 is Article 46(2) of Regulation No 1408/71.


Is the concept of “the supply of services and of goods closely linked to welfare and <mask> work” contained in Article 132(1)(g) of [the VAT Directive] to be interpreted as including or excluding services performed in the context of a scheme for the protection of adults established by law and subject to the control of an independent judicial authority?


Clearly, such a finding implies that under the law as it currently stands the scope ratione materiae is very large, raising the question whether the Court should consider introducing a limitation such as it has done in Keck and Mithouard   in 1993 regarding the <mask>. The line of argumentation for such a limitation would be the following: as in Keck and Mithouard,   we are here in the presence of an indistinctly applicable measure, in law and in fact, to the freedom to provide services and the corresponding freedom to receive such services. There is therefore no discriminatory element involved: from the perspective of the service provider, any foreign firm wishing to establish itself in Děčín with a view to offering gambling activities finds itself in exactly the same situation as BONVER WIN and could not carry out its activity in the specified part of town. Conversely, as regards the service recipient, no recipient — be he or she a Czech or foreign recipient — can receive gambling services in the specified part of the town. On the assumption that the concept of a ‘certain selling arrangement’, as developed in Keck and Mithouard,   is in reality to mean the market access of a firm intending to sell goods or, in the present case, to offer its services, why not exclude from the scope of Article 56 TFEU those measures indistinctly applicable in law and in fact which do not impede the market access of service providers from other Member States?


Since the CBD oil contained in Kanavape was, in the present case, imported from the Czech Republic, where the hemp plant was cultivated and where the CBD was extracted, the national court making the reference, the Cour d’appel d’Aix-en-Provence (Court of Appeal, Aix-en-Provence, France), questions whether the French legislation complies with the provisions of the FEU Treaty relating to the <mask> and with secondary legislation adopted within the framework of the common agricultural policy, specifically Regulation (EU) No 1307/2013   and Regulation (EU) No 1308/2013.


The award of public contracts by or on behalf of Member States’ authorities has to comply with the principles of the [FEU] Treaty, and in particular the <mask>, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that those principles are given practical effect and public procurement is opened up to competition.


‘Unrestricted access to vehicle repair information, via a standardised format which can be used to retrieve the technical information, and effective competition on the market for vehicle repair and maintenance information services are necessary to improve the functioning of the internal market, particularly as regards the <mask>, freedom of establishment and freedom to provide services. A great proportion of such information is related to on-board diagnostic (OBD) systems and their interaction with other vehicle systems. It is appropriate to lay down technical specifications that manufacturers’ websites should follow, along with targeted measures to ensure reasonable access for small and medium-sized enterprises (SMEs). Common standards agreed with the involvement of stakeholders, such as the [Organisation for the Advancement of Structured Information Standards (OASIS)] format, can facilitate the exchange of information between manufacturers and service providers. It is therefore appropriate to initially require the use of the technical specifications of the OASIS format and to ask the Commission to request CEN/ISO (European Committee for Standardisation/International Organisation for Standardisation) to further develop this format into a standard with a view to replacing the OASIS format in due course.’


In this case, it is accordingly necessary to examine whether there is a particular connecting factor linking the specific situation that gives rise to the alleged discrimination and the provisions of the FEU treaty on the various freedoms of movement, particularly those relating to the free movement of persons, the <mask> or the freedom to provide services.


On the other hand, the Court limits the reach of Articles 34 and 35 TFEU with a test of remoteness. It is settled case-law that those articles do not cover a measure that applies without distinction and whose purpose is not to regulate trade in goods with other Member States, and the restrictive effects of which on the <mask> are too uncertain and indirect for the obligation which it lays down to be regarded as being of a nature to hinder trade between Member States.


In so far as national measures imposing an obligation to provide information on the origin or provenance of goods apply without distinction to all goods, they do not constitute direct discrimination but measures which may have an effect equivalent to a quantitative restriction. See, to that effect, judgment of 25 April 1985, Commission v United Kingdom (207/83, EU:C:1985:161, paragraph 17). In the present case, the contested decree does not apply to products processed outside the Union. However, the Court has ruled that ‘the application of … national measure[s], may also have effects on the <mask> … even if restricted to domestic producers’, since it encourages the purchase by domestic processors of locally produced goods, in this case, milk. See, to that effect, judgment of 7 May 1997, Pistre and Others (C‑321/94 to C‑324/94, EU:C:1997:229, paragraph 45).


(Reference for a preliminary ruling – Cross-border healthcare – Directive 2011/24/EU – Articles 3(k) and 11(1) – Prescription – Definition – Recognition of a prescription issued in another Member State by an authorised person – Conditions – <mask> – Prohibition of measures having equivalent effect to quantitative restrictions on exports – Articles 35 and 36 TFEU – Restriction on the dispensing by a pharmacy of prescription-only medicinal products – Order form issued in another Member State – Justification – Protection of human health and human life – Directive 2001/83/EC – Second paragraph of Article 81 – Supply of medicinal products to the public of a Member State)


In that regard, it should be noted at the outset that, although the Commission does not allege infringement of a specific provision of Regulation No 1308/2013, but infringement of that regulation as a whole, the fact remains that, in the absence of a pricing mechanism, the free formation of selling prices on the basis of fair competition is a component of that regulation and constitutes the expression of the principle of <mask> in conditions of effective competition (see, to that effect, judgment of 13 November 2019, Lietuvos Respublikos Seimo narių grupė, C‑2/18, EU:C:2019:962, paragraph 37 and the case-law cited).


The internal market is itself defined by Article 26(2) TFEU as an area ‘without internal frontiers in which the <mask>, person, services and capital is ensured in accordance with the provision of the Treaties’. While it is true that, as the General Court observed in Castelnou Energía v Commission,   environmental policies must be integrated into definition and implementation of EU policies, the fact remains that, as that Court also observed in that case, ‘protection of the environment does not constitute, per se, one of the components of that internal market’.


As regards, however, the question whether such State aid meets the second condition laid down in Article 107(3)(c) TFEU, also noted in paragraph 19 of the present judgment, under which that aid must not adversely affect trading conditions to an extent contrary to the common interest, this condition, as the General Court correctly held, entails weighing up the positive effects of the planned aid for the development of the activities that that aid is intended to support and the negative effects that the aid may have on the internal market. Article 26(2) TFEU states that that market ‘shall comprise an area without internal frontiers in which the <mask>, persons, services and capital is ensured in accordance with the provisions of the Treaties’. Therefore, examination of the second condition laid down in Article 107(3)(c) TFEU entails the Commission taking into account the negative effects of the State aid on competition and trade between Member States, but does not require any negative effects other than those to be taken into account.


I conclude from this that Articles 34 and 36 TFEU preclude legislation such as that at issue in the main proceedings, which prohibits the importation of CBD oil where it is extracted from the whole hemp plant, since, in the current state of scientific knowledge, it has not been established that CBD oil has psychotropic effects. It is, however, for the national court to satisfy itself that no risk associated with, inter alia, non-psychotropic effects of CBD has been identified or been the subject of a comprehensive scientific assessment, and if it were to find that such a risk existed and that there were such an assessment, to satisfy itself that an alternative measure, less restrictive on the <mask>, could be adopted, such as the establishment of a maximum CBD content.


Last, as regards the <mask>, laid down in Article 34 TFEU, it is not disputed that the cross-border movement of the breast implants at issue in the main proceedings was not affected by any discriminatory obstacle. On the contrary, those products, which were manufactured in France, were subsequently marketed in the Netherlands by a Dutch company which thereafter sold them in Germany.


Irgita, paragraph 48: ‘The freedom of the Member States as to the choice of the management method that they judge to be most appropriate for the performance of works or the provision of services cannot however be unlimited. That freedom must, on the contrary, be exercised with due regard to the fundamental rules of the FEU Treaty, in particular the <mask>, the freedom of establishment and the freedom to provide services as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency’.


In any event, it should be recalled that, where a national measure affects both the freedom to provide services and the <mask>, the Court will, in principle, examine it in relation to just one of those two fundamental freedoms if it is clear that, in the circumstances of the case, one of those freedoms is entirely secondary in relation to the other and may be attached to it (judgment of 14 October 2004, Omega, C‑36/02, EU:C:2004:614, paragraph 26 and the case-law cited).


7. Recital 15 reads: ‘The award of contracts concluded in the Member States by contracting entities as referred to in Directive 2004/17/EC … and by contracting authorities as referred to in Directive 2004/18/EC … is subject to compliance with the principles of the Treaty and in particular the <mask>, the freedom of establishment and the freedom to provide services, and with the principles deriving therefrom, such as the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency. …’


27 Among the specific provisions of the Treaty which the Member States are required to comply with when exercising the entitlement conferred on them by Article 2(2) of Directive 97/23, it is necessary, in the light of the objective pursued by that directive, namely to eliminate obstacles to the free movement of pressure equipment within the internal market, to refer to Articles 34 and 36 TFEU which govern the <mask> and prohibit, between Member States, quantitative restrictions on imports and all measures having equivalent effect.


The barriers to trade outlined by the Commission are not the result of the contested measure, but rather the consequence of the commercial practice which that measure seeks to address. Paragraph 3(2)(u) of Law XCV of 2009 expressly prohibits discrimination based on the country of origin in the context of price fixing. If a supplier manufactures products efficiently, innovatively and at low cost and therefore sells its products to a retailer at a low supplier price, the price at which those products will be offered to the consumer will also be lower than that of other suppliers’ products which are manufactured less efficiently and are therefore sold at a higher price. Homogeneous basic foodstuffs therefore compete on the consumer market on the basis of their cost-effectiveness, irrespective of their Member State of origin. The case-law of the Court does not support the conclusion that legislation of a Member State which makes no distinction on the basis of the origin of the goods, which is not intended to regulate trade in goods with other Member States and whose restrictive effects on the <mask> are too uncertain and too indirect, is incompatible with Union law.


19. I shall start the analysis by considering the degree of harmonisation achieved by the BPR, given that this is the instrument of EU law that the referring court specifically inquires about. On a subsidiary basis, that court also inquires more generally about the conditions under which EU law allows for the adoption of national rules such as those at issue. In so far as it is necessary to do so, I will thus assess the rules at issue in the light of the relevant EU law which, in the present case, are the provisions on the <mask> under Articles 34 and 36 TFEU. (8) Those provisions, however, become applicable only if the case in the main proceedings involves a cross-border element, (9) which it is for the referring court to ascertain. (10)


In the present case, it should be noted that paragraphs 61 to 67 of the application contain a summary of the legal arguments by which the applicant challenges by his fourth plea, alleging infringement of the EU rules on the use of languages, the lawfulness of the notice of competition in the light of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 1958 L 17, p. 385), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 adapting certain regulations and decisions in the fields of <mask>, freedom of movement for persons, company law, competition policy, agriculture, food safety, veterinary and phytosanitary policy, transport policy, energy, taxation, statistics, trans-European networks, judiciary and fundamental rights, justice, freedom and security, environment, customs union, external relations, foreign, security and defence policy and institutions, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 1) (‘Regulation No 1’), and of the principle of equal treatment. That summary is sufficiently clear and precise to enable the Parliament to prepare its defence and the Court to exercise its power of review. The fourth plea must therefore be declared admissible.


Where a national measure relates to both the <mask> and the freedom to provide services, the Court will in principle examine that measure in relation to only one of those two fundamental freedoms if it is apparent that one of them is entirely secondary in relation to the other and may be considered together with it (judgments of 22 January 2002, Canal Satélite Digital, C‑390/99, EU:C:2002:34, paragraph 31 and the case-law cited, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 78).


Far less is known about situations in which a private party requires another private party to have its residence at a specified location. In terms of EU law, obscurity prevails. Is it lawful that, in many instances, it is virtually impossible for a customer who does not reside in the same Member State as that in which the bank is established to obtain a mortgage from that bank? Can an insurer refuse to provide coverage for a potential customer located in another Member State? To a layman, at the very least, such situations are difficult to reconcile with the objective of an internal market. While for some such practices are incompatible with the rationale of an internal market ‘in which the <mask>, persons, services and capital is ensured in accordance with the provisions of the Treaties’,   others would point to a supposedly fundamental difference between the activity of public and private entities and the fact that in terms of underlying logic, at least initially, public activity was to be governed by the fundamental freedoms and private activity by the provisions of competition law. The rest was left to ‘the market’ itself.


The <mask> means that an operator who has bought a medicinal product lawfully marketed in one Member State under a marketing authorisation issued in that State can import that medicinal product into another Member State where it already has a marketing authorisation, without having to obtain such an authorisation in accordance with Directive 2001/83 and without having to provide all the information and documentation required by the directive for the purpose of determining whether the medicinal product is effective and safe (see, to that effect, judgment of 10 September 2002, Ferring, C‑172/00, EU:C:2002:474, paragraph 21 and the case-law cited).


Legislation which is capable of restricting a fundamental freedom guaranteed by the FEU Treaty, such as the <mask>, can, however, be properly justified only if it is appropriate for securing the attainment of the objective pursued and does not go beyond what is necessary in order to attain it (judgments of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 48 and the case-law cited, and of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraph 34).


The <mask> is a fundamental principle of the FEU Treaty which is expressed in the prohibition, set out in Article 34 TFEU, of quantitative restrictions on imports between Member States and all measures having equivalent effect. In accordance with settled case-law, the prohibition of measures having an effect equivalent to a quantitative restriction, laid down in Article 34 TFEU, applies to all legislation of the Member States that is capable of hindering, directly or indirectly, actually or potentially, trade between Member States.   This prohibition was first articulated by the Court in its judgment of 11 July 1974, Dassonville (8/74, EU:C:1974:82) (‘the Dassonville judgment’).


However, a national measure which restricts the <mask> may be justified, inter alia, on grounds of protection of the health and life of humans, within the meaning of Article 36 TFEU. In that regard, I note that, although it is for the Member States to decide the level of protection they wish to afford to the health and life of humans, the fact remains that legislation that is capable of restricting a fundamental freedom guaranteed by the FEU Treaty, such as the free movement of goods, can be justified on grounds of the protection of the health and life of humans, within the meaning of Article 36 TFEU, only if that measure is appropriate for securing the achievement of the objective pursued and does not go beyond what is necessary in order to attain it.


In paragraphs 16 and 17 of that judgment the Court stated that the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements does not hinder trade between Member States so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. In such circumstances, the rules on the sale of products from another Member State are deemed not prevent their access to the market and thus fall outside the scope of Article 34 TFEU. The rule of reason approach developed in the field of <mask> is not however ‘set in stone’ and some rare exceptions exist in the case-law which temper that approach. See, for example, judgment of 26 June 1997, Familiapress (C‑368/95, EU:C:1997:325). In that case, the Court found that even though the relevant national legislation was directed against a method of sales promotion (and thus a selling arrangement), it nevertheless affected the actual content of the products. The Court, however, has not adopted a similar rule of reason approach in the field of freedom to provide services in accordance with which a particular type or category of national measure is deemed, in principle, not to impede access to the market. A case-by-case, rather than a more formalistic approach, which identifies or singles out particular categories of measures has, thus, consistently been adopted. See, judgment of 10 May 1995, Alpine Investments (C‑384/93, EU:C:1995:126, paragraphs 33 to 38). In the latter judgment, the Court stated that the reason why legislation imposing certain selling arrangements in respect of goods falls outside the scope of Article 34 TFEU is that it does not prevent the access of imported products to the market of a Member State or impede them any more than it impedes the access of domestic products. In that case however, the prohibition of cold calling potential clients in another Member State imposed on financial intermediaries who offered off-market commodities futures was held to be a restriction of the freedom to provide services. Despite the fact that I may think that cold calling is a quintessential selling method/arrangement, the Court found that no analogy could be drawn with the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905) as the prohibition of cold calling in question directly affected access to the market in services.


However, it is important to note that Member States, in making use of this option, must respect the fundamental rules of the TFEU, in particular those relating to the <mask>, the freedom of establishment and the freedom to provide services, as well as the principles deriving from them, such as the principles of equal treatment and proportionality (see, to that effect, judgment of 3 October 2019, Irgita, C‑285/18, EU:C:2019:829, paragraph 48 and the case-law cited), which are, moreover, reflected in Article 18 of Directive 2014/24.


Delfarma requested a review of its application, asking the President of the Office to refrain from applying Article 2(7b)(b) of the Law on medicinal products on the ground that that provision introduces a restriction on the <mask> prohibited by Article 34 TFEU. In support of that request Delfarma, first, challenged the finding that the equivalent of a reference medicinal product and a reference medicinal product cannot be regarded as identical or similar for the sole reason that they have been authorised on the basis of different documentation. Second, it argued that the additional requirement, laid down in Article 2(7b)(b) of the Law on medicinal products, pursuant to which the imported medicinal product and the medicinal product authorised in the importing State must be in the same registration category of medicinal products, was formal in nature and was not justified on grounds of protection of public health.


National legislation, such as that at issue in the main proceedings, may concern both the freedom to provide services, mentioned by the referring court in its question, in so far as it applies to pharmacies whose activities include the retail sale of medicinal products, and to the <mask>, since it governs the conditions for the issue of certain types of medicinal products, by pharmacies, to health professionals authorised to prescribe medicinal products and to exercise their activity in a Member State other than that in which those pharmacies are established.


A appealed against that decision to the cour d’appel de Paris (Court of Appeal, Paris, France), arguing that Articles R. 4235-22 and R. 4235-64 of the Public Health Code do not apply to it. Those provisions, it argued, constitute barriers to the principle of the application of the rules of the country of origin, laid down in Article 3 of Directive 2000/31 and Article 85c of Directive 2001/83, and to the <mask> guaranteed under Article 34 TFEU, which are not justified by the protection of public health.


Therefore, before turning to the scope of Article 18 TFEU as a free-standing provision (4), I shall first explore whether there are any specific provisions of secondary law that are relevant (1), the implications and reach of the <mask> rules in the present case (2), and the possibility of patients who suffered harm in other Member States receiving insurance services (3).


(Reference for a preliminary ruling — Articles 34 and 36 TFEU — <mask> — Measure having equivalent effect to a quantitative restriction — Protection of health and life of humans — Parallel import of medicinal products — Reference medicinal products and generic medicinal products — Requirement that the imported medicinal product and that which has been granted a marketing authorisation in the Member State of importation are both reference medicinal products or are both generic medicinal products)


The Commission considers that the restriction in question cannot be justified in accordance with Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain.   It notes that Directive 2019/633 identifies in a precise manner 16 unfair trading practices which are prohibited. Thus not every situation which is presumed unfair is prohibited. As the contested measure applies in a very general manner to all decisions on the fixing of price by a retailer, the Commission considers that Paragraph 3(2)(u) of Law XCV of 2009 is contrary to the general principles laid down in Regulation No 1308/2013 and the relevant case-law, as it affects a large range of agricultural and food products when it limits the freedom to fix prices in the supply chain. In paragraph 20 of the judgment of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845), the Court stated that the free formation of selling prices on the basis of fair competition is a component of Regulation No 1308/2013 and constitutes the expression of the principle of <mask> in conditions of effective competition. The Commission considers that Paragraph 3(2)(u) of Law XCV of 2009 is thus incompatible with that judgment.


61. Since the prohibition on measures having an effect equivalent to [quantitative restrictions on] imports is of a residual nature in relation to the other prohibitions laid down in the TFEU in connection with the <mask>, (32) it is appropriate to look first at the compatibility of the Italian scheme with the prohibition of charges having an effect equivalent effect [to customs duties on imports] and the prohibition on discriminatory internal taxation. 1. Prohibition of charges having an effect equivalent to customs duties on imports (Articles 28 and 30 TFUE)


The German Government contends that the Court should not rely on the distinction in primary EU law regarding the <mask> and services, since the subject matter of Directive 86/653 is the harmonisation of the activity of commercial agents, and thus its scope must be determined functionally against that background, such that the interpretation most favourable to the commercial agent should, as far as possible, be made. It emphasises that a narrow interpretation of ‘sale of goods’ in Article 1(2) of Directive 86/653 as covering only tangible goods undermines the objective of protecting commercial agents pursued by that directive, as a significant part of the traditional field of activity of commercial agents in Germany would no longer fall within the scope of that directive.


Thirdly, although a parallel interpretation of the fundamental freedoms should in principle be favoured, it is difficult to draw comparisons between the <mask> and the freedom to provide services when it comes to the doctrine of selling arrangements and market access. It is easier to develop such a doctrine in the context of (mainly)   tangible goods. With services, matters are different: because of the non-tangible nature of service, it is more difficult to determine what constitutes the service itself and what is not directly related to the service.


6 Recitals 4, 5 and 7 of Directive 2011/83 are worded as follows: ‘(4) In accordance with Article 26(2) TFEU, the internal market is to comprise an area without internal frontiers in which the <mask> and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity. (5) … The full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and a better functioning of the business-to-consumer internal market. … (7) Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders. Both consumers and traders should be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Union. The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. Those barriers can only be eliminated by establishing uniform rules at Union level. Furthermore consumers should enjoy a high common level of protection across the Union.’


B. S. and C. A. appealed against the judgment of the Tribunal correctionnel de Marseille (Criminal Court, Marseille) before the Cour d’appel d’Aix-en-Provence (Court of Appeal, Aix-en-Provence). The latter court questions whether the Decree of 22 August 1990 complies with the principle of the <mask>, since that decree restricts the importation of a product which, because it has a THC content below the legal threshold of 0.20%, cannot be regarded as a narcotic drug. It also questions whether the Decree of 22 August 1990 complies with Regulations No 1307/2013 and No 1308/2013, which allow the cultivation and importation into the European Union of hemp with a THC content below 0.20%.


40. I therefore conclude that the BPR does not preclude the prohibition at issue. The latter nevertheless remains subject, as regards situations involving a cross-border element and considering the specifics of the present case, (25) to the Treaty provisions on the <mask>, to which I shall now turn. 2. Limits flowing from Articles 34 and 36 TFEU


6. Directive 2014/24 lays down rules that seek to coordinate national procedures for the award of public contracts above a certain threshold amount so that they may be consistent with the principle of the <mask>, freedom of establishment and freedom to provide services, as well as ensuring the implementation of principles, such as equal treatment, non-discrimination, proportionality and transparency. That directive is also intended to ensure effective competition in public procurement.


Secondly, even if the applicants’ general allegations concerning the existence of a public interest in the guarantee of access to harmonised standards that is freely available and without charge were to be accepted, the disclosure of the requested harmonised standards in the present case is unlikely to serve that interest. Irrespective of the nature of the right to which their design gives rise for their creators, access to harmonised standards remains subject to restrictions, such as the payment of the fees established by the national standardisation bodies on the basis of the system of European standardisation or the consultation for free in certain libraries. It is thus necessary to endorse the Commission’s assessment that the public interest in ensuring the functioning of the European standardisation system, the aim of which is to promote the <mask> while guaranteeing an equivalent minimum level of safety in all European countries, prevails over the guarantee of freely available access to the harmonised standards without charge.


In that regard, the Commission observes that, in the absence of a pricing mechanism, the free formation of selling prices on the basis of fair competition is a component of Regulation No 1308/2013 and constitutes the expression of the principle of <mask> in conditions of effective competition. Moreover, it maintains that any common organisation of the market (‘the CMO’) is based on the concept of an open market to which every producer has free access in conditions of effective competition.


It is, in each particular case, for the national authorities to provide the necessary evidence to that effect. Where a national court examines national legislation in the light of the justification relating to protection of human health and human life under Article 36 TFEU, that court must examine objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the <mask> (see, to that effect, judgments of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 50, and of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraphs 35 and 36 and the case-law cited).


Article 38(1) of Regulation No 1169/2011 is clear, ‘as regards the matters specifically harmonised by this Regulation, Member States may not adopt nor maintain national measures unless authorised by Union law’. On the contrary, it follows from Article 38(2) of Regulation No 1169/2011 that Member States may adopt national measures concerning matters not specifically harmonised by that regulation provided that they do not prohibit, impede or restrict the <mask> that are in conformity with the regulation.


As a preliminary point, it must be noted that, according to the Court’s settled case-law, Directive 2001/83 cannot apply to a medicinal product covered by a marketing authorisation in one Member State which is being imported into another Member State as a parallel import of a medicinal product already covered by a marketing authorisation in that other Member State, because the imported medicinal product cannot, in such a case, be regarded as being placed on the market for the first time in the Member State of importation. Such a situation therefore falls under the provisions of the TFEU on the <mask>, including Articles 34 and 36 TFEU (judgment of 3 July 2019, Delfarma, C‑387/18, EU:C:2019:556, paragraph 19 and the case-law cited), which, in essence, prohibit Member States, in principle, from imposing quantitative restrictions on imports and measures having equivalent effect, which may, however, be justified, inter alia, on grounds of the protection of health and life of humans.


Self-supply on the part of public entities, be this in the form of ‘in-house’ or ‘horizontal’ cooperation, is not without risk for the <mask> and services.   Equally legitimate are the misgivings about its effects on free competition beyond the situation expressly referred to in the second paragraph, in fine, of recital 33 of Directive 2014/24, which warns against cooperation that places an economic operator in a position of advantage vis-à-vis other competitors.


This is true in particular of the <mask> and, to a lesser extent, the freedom to provide services and with the free movement of workers (the order contains only the odd reference to these two freedoms). The national court’s reasoning a quo centres on the freedom of establishment, which is understandable, given that the dispute concerns the restrictions which the Belgian rules on the recruitment of dockers entail for undertakings from other Member States that wish to establish themselves and provide services in Belgian ports.


47 For example, Directive 2008/50 provides that the Member States are to take ‘appropriate measures’ to ensure that, where the limit values are exceeded, the exceedance period is as short as possible. Furthermore, as is apparent from the Court’s case-law resulting from the judgment of 4 June 2009, Mickelsson and Roos (C‑142/05, EU:C:2009:336), and from paragraph 53 of the judgment under appeal, rules such as those relating to the <mask> and the right to property, protected by EU law under Article 17 of the Charter of Fundamental Rights of the European Union, are liable to render restrictions on the use of newly registered vehicles with low pollutant emissions disproportionate. The partial annulment of the regulation at issue would have no effect on that legal situation, with the result that there is no link between the ‘regulatory powers’ of infra-State bodies in that field and the regulation at issue.


As regards the possible justifications for the national rules in question, the Commission notes that a measure which constitutes a restriction pursuant to Article 34 TFEU may be justified in accordance with Article 36 TFEU or for overriding reasons in the public interest. However, in accordance with the case-law, a provision which is capable of restricting a fundamental freedom guaranteed by the FEU Treaty, such as the <mask>, can be properly justified only if it is appropriate for securing the attainment of a legitimate objective and does not go beyond what is necessary in order to attain it. The Commission considers that the national measure in question is neither appropriate nor proportionate.


(Reference for a preliminary ruling – Articles 34 and 36 TFUE – <mask> – Measure having equivalent effect to a quantitative restriction – Medicinal products for human use – Parallel import of medicinal products – Legislation of a Member State under which a parallel import licence is to expire automatically after one year from the expiry of the marketing authorisation for the reference medicinal product – Protection of the health and life of humans – Proportionality – Directive 2001/83/EC – Pharmacovigilance)


Hidroelectrica challenged the sanction before the Judecătorie Sectorului 1 București (Court of First Instance, Sector 1, Bucharest, Romania), claiming that it was invalid on the grounds that it infringed the principle of the <mask>. Specifically, it argued that ANRE had interpreted Article 23(1) of Law No 123/2012 contrary to the legal thinking developed by the Consiliul Concurenței (Romanian competition authority) and to its own precedents.


24 In the first ‘Feta’ case, which concerned Greek measures that prevented the marketing of cheese from Denmark bearing the name ‘Feta’, Advocate General Ruiz-Jarabo Colomer considered that such measures constituted an obstacle to the <mask> and thus were caught by the EU rules prohibiting measures of equivalent effect on imports (what is now Article 34 TFEU). However, the Advocate General was of the opinion that such measures, even if being an obstacle to trade, could be justified by the protection of industrial and commercial property. See footnote 11 of this Opinion.


Whereas the internal market comprises an area without internal frontiers in which the <mask>, persons, services and capital is guaranteed; whereas free movement of goods concerns not only transactions by persons acting in the course of a business but also transactions by private individuals; whereas it implies that consumers resident in one Member State should be free to purchase goods in the territory of another Member State on the basis of a uniform minimum set of fair rules governing the sale of consumer goods;


3 According to recital 4 of the VAT Directive: ‘The attainment of the objective of establishing an internal market presupposes the application in Member States of legislation on turnover taxes that does not distort conditions of competition or hinder the <mask> and services. It is therefore necessary to achieve such harmonisation of legislation on turnover taxes by means of a system of [VAT], such as will eliminate, as far as possible, factors which may distort conditions of competition, whether at national or Community level.’


As far back as in 1981, the Court held that ‘criminal legislation and the rules of criminal procedure are matters for which the Member States are still responsible. However … that Community law also sets certain limits in that area as regards the control measures which it permits the Member States to maintain in connection with the <mask> and persons’.   That must a fortiori be true some 40 years later, when the Member States have made a commitment to offer their citizens ‘an area of freedom, security and justice [(‘AFSJ’)] without internal frontiers, in which the free movement of persons is ensured’.


Judgments of 2 September 2015, Groupe Steria (C‑386/14, EU:C:2015:524, paragraph 39); of 26 October 2010, Schmelz (C‑97/09, EU:C:2010:632, paragraph 50); and of 18 September 2003, Bosal (C‑168/01, EU:C:2003:479, paragraphs 25 and 26). See, by analogy, in relation to the <mask>, judgments of 25 June 1997, Kieffer and Thill (C‑114/96, EU:C:1997:316, paragraph 27), and of 12 July 2012, Association Kokopelli (C‑59/11, EU:C:2012:447, paragraph 80).


‘The attainment of the objective of establishing an internal market presupposes the application in Member States of legislation on turnover taxes that does not distort conditions of competition or hinder the <mask> and services. It is therefore necessary to achieve such harmonisation of legislation on turnover taxes by means of a system of value added tax (VAT), such as will eliminate, as far as possible, factors which may distort conditions of competition, whether at national or Community level.’


‘Member States may only adopt or maintain additional national provisions on products covered by a Union marketing standard if those provisions comply with Union law, in particular the principle of <mask>, and subject to Directive 98/34/EC of the European Parliament and of the Council [of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37)] …’


Assuming that national legislation such as that referred to in paragraph 80 of the present judgment were liable to restrict also the <mask>, in so far as dockers also carry out work relating to the transport of goods transiting through ports, it is clear that such a restriction would be entirely secondary in relation to restrictions on the freedom of movement for workers and services, as well as on the freedom of establishment.


The Commission considers that the interference in the free pricing policy in question is aimed at protecting certain national economic operators rather than defending the interests of consumers as claimed by Hungary. In order to defend the interests of consumers, it would be sufficient to prohibit sales below cost. In the present case, the State intervention goes beyond a ban on sales below cost and does not appear to bring any benefit to the consumer. According to the Commission, Paragraph 3(2)(u) of Law XCV of 2009 constitutes per se an arbitrary discrimination and a practice contrary to Article 34 TFEU such that different statistical data, which might tend to prove that the contested measure is not discriminatory, is irrelevant. The Commission also considers that the term ‘identical products’ gives rise to uncertainty and thus to a breach of Article 34 TFEU. In that regard, the Commission notes that certain retailers could, for example, indicate on the product the breed of cows that produced the UHT milk, as some already do for meat products. Due to the national rules in question, these products may not be sold at a higher price since, according to Hungary, the same profit margin should be applied to all UHT milk with a fat content of, for example, 2.8%. This could negatively influence the consumer and affect the <mask>.


With regard to the French Republic’s argument that the need to comply with EU law and, in particular, the <mask> limits the discretion of Member States in adopting measures seeking to reduce the NO2 emissions generated by road traffic, such as a sectoral traffic prohibition, it must be recalled, as is apparent from paragraphs 117, 138 and 140 of the judgment of 21 December 2011, Commission v Austria (C‑28/09, EU:C:2011:854), that the Court has held that such a sectoral prohibition may be appropriate for attaining the objective of protection of the environment and thus justify an obstacle to the free movement of goods, provided that, in view of the objective thus pursued, no measures exist which are less restrictive of freedom of movement.


It must be recalled that, according to settled case-law, the aim of Article 110 TFEU is to ensure <mask> between the Member States in normal conditions of competition. To that end, Article 110 intends to eliminate all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States (see, to that effect, judgment of 7 April 2011, Tatu, C‑402/09, EU:C:2011:219, paragraph 34 and the case-law cited).


3 Recitals 3, 4, 8, 14, 16, 23 to 26 and 61 of Directive 2009/73 state: ‘(3) The freedoms which the Treaty guarantees the citizens of the Union – inter alia, the <mask>, the freedom of establishment and the freedom to provide services – are achievable only in a fully open market, which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers. (4) However, at present, there are obstacles to the sale of gas on equal terms and without discrimination or disadvantages in the Community. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist. … (8) Only the removal of the incentive for vertically integrated undertakings to discriminate against competitors as regards network access and investment can ensure effective unbundling. Ownership unbundling, which implies the appointment of the network owner as the system operator and its independence from any supply and production interests, is clearly an effective and stable way to solve the inherent conflict of interests and to ensure security of supply. For that reason, the European Parliament, in its resolution of 10 July 2007 on prospects for the internal gas and electricity market [(OJ 2008 C 175 E, p. 206),] referred to ownership unbundling at transmission level as the most effective tool by which to promote investments in infrastructure in a non-discriminatory way, fair access to the network for new entrants and transparency in the market. … … (14) Where, on 3 September 2009, an undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should therefore be given a choice between ownership unbundling and setting up a system operator or transmission operator which is independent from supply and production interests. … (16) The full effectiveness of the independent system operator or independent transmission operator solutions should be ensured by way of specific additional rules. The rules on the independent transmission operator provide an appropriate regulatory framework to guarantee fair competition, sufficient investment, access for new market entrants and the integration of gas markets. Effective unbundling through the independent transmission operator provisions should be based on a pillar of organisational measures and measures relating to the governance of transmission system operators and on a pillar of measures relating to investment, connecting new production capacities to the network and market integration through regional cooperation. The independence of the transmission operator should also, inter alia, be ensured through certain “cooling-off” periods during which no management or other relevant activity giving access to the same information as could have been obtained in a managerial position is exercised in the vertically integrated undertaking. The independent transmission operator model of effective unbundling is in line with the requirements laid down by the European Council at its meeting on 8 and 9 March 2007. … (23) Further measures should be taken in order to ensure transparent and non-discriminatory tariffs for access to transport. Those tariffs should be applicable to all users on a non-discriminatory basis. Where a storage facility, linepack or ancillary service operates in a sufficiently competitive market, access could be allowed on the basis of transparent and non-discriminatory market-based mechanisms. (24) It is necessary to ensure the independence of storage system operators in order to improve third-party access to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers. … (25) Non-discriminatory access to the distribution network determines downstream access to customers at retail level. … To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to household and small non-household customers. (26) Member States should take concrete measures to assist the wider use of biogas and gas from biomass, the producers of which should be granted non-discriminatory access to the gas system, provided that such access is compatible with the relevant technical rules and safety standards on an ongoing basis. … (61) Under Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks [and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36)], the [European] Commission may adopt Guidelines to achieve the necessary degree of harmonisation. Such Guidelines, which constitute binding implementing measures, are, also with regard to certain provisions of this Directive, a useful tool which can be adapted quickly where necessary.’


The Court has not yet had the opportunity to deal with this concept of EU law directly, but has mentioned it incidentally in cases relating to the <mask> (judgment of 23 November 1978, Thompson and Others (7/78, EU:C:1978:209)), in matters of value added tax (judgments of 14 July 1998, First National Bank of Chicago (C‑172/96, EU:C:1998:354, paragraph 25), and of 22 October 2015, Hedqvist (C‑264/14, EU:C:2015:718, paragraphs 25 and 44 et seq.)), and in matters of transport (judgment of 15 November 2018, Verbraucherzentrale Baden-Württemberg (C‑330/17, EU:C:2018:916)).


Furthermore, since the energy imported into Spain is not subject to the IVPEE, that tax favours electricity producers from other Member States and is thus the source of distortion of competition, prohibited by Article 107(1) TFEU. The creation of such an anti-competitive advantage in favour of non-national producers also affects the <mask>, freedom of establishment and the freedom to provide services, governed by Directive 2009/72, which requires that third party access to the network in question is ensured in an objective and non-discriminatory manner.


I also note that, although the Court considered on two occasions that cannabis-based products did not fall within the scope of the rules on the <mask>, neither of those cases involved CBD. The first case involved hashish, a cannabis resin concentrate,   and the second case involved cannabis sold in Dutch coffee-shops, which most certainly contained a high level of THC.


53 However, in order for such a system to be applicable, it must comply with the requirements of EU law. In that regard, it is necessary that its application does not compromise the objectives of Regulation No 1151/2012. In view of the scope of that regulation, this entails that the protection granted by the national scheme concerned need not have the effect of guaranteeing to consumers that the products which enjoy that protection have a specific quality or characteristic, but only of ensuring that those products come from the geographical area concerned. Moreover, it is necessary that that application does not contravene the provisions of the FEU Treaty relating to the <mask> (see, to that effect, judgment of 8 May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraphs 33 to 35).


The freedom of the Member States as to the choice of the management method that they judge to be most appropriate for the performance of works or the provision of services cannot, however, be unlimited. That freedom must, on the contrary, be exercised with due regard to the fundamental rules of the FEU Treaty, in particular the <mask>, the freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency (the judgment in Irgita, paragraph 48).


10 According to the appellant, the legal issues raised in support of its appeal are of unquestionable significance with respect to the unity, consistency and development of EU law because they are linked to the principle of legal certainty and the <mask> in so far as they relate to the scope of protection of EU trade marks. Those issues also contribute to the development of EU law since they concern the criteria to be applied in assessing, for the purposes of Article 15 of Regulation No 207/2009, whether the goods in respect of which the mark was registered are the same as those in connection with which it has been used, criteria which are likely to apply in all cases concerning the assessment of genuine use of an EU trade mark and which have not yet been analysed in the case-law of the Court of Justice.


In accordance with those principles, the Court examined national measures restricting an undertaking’s advertising of the goods which it offers for sale in the light of the <mask> alone.   The dissemination of advertising was regarded, rather than as an end in itself, as a secondary element in relation to the sale of the goods in question.   The Court also assessed national measures governing the sale of goods over the internet – which nonetheless constitutes an information society service – solely on the basis of Article 34 TFEU.


It follows that the Treaty rules on <mask> are not applicable to the conditions concerning the subsequent use of goods in the host Member State, provided that those conditions do not directly and immediately hinder access to the market of that Member State. From the point of view of the end user, an obligation on a manufacturer to take out insurance against civil liability for defective products, or the absence of any such obligation, exclusively concerns the conditions of subsequent use of the goods on the territory of the host Member State and does not directly and immediately concern either exit of the goods from the home Member State or access to the market of the host Member State.


In that context, the referring court questions whether that provision is compatible with EU law, taking the view that ‘True hemp (Cannabis sativa), raw or processed but not spun; tow and waste of true hemp (including pulled or garnetted rags or ropes)’ is listed in Chapter 57 of the HS Convention, referred to in Annex I to the Treaties, and that it should therefore be regarded as an agricultural product, within the meaning of Article 38 TFEU, which puts in place an internal market based on the <mask>.


On the other hand, the French Republic considers that the measures which it took are being hampered by the impact of population growth, accentuated by changes in modes of transport. Moreover, the measures to be adopted by Member States, which aim, in particular, to restrict traffic on busy roads, should take account of the features of urbanisation of the zones and agglomerations concerned. It is important that those measures do not cause traffic, and therefore, necessarily, harmful emissions, to be moved towards other urban areas and roads which are unsuitable or of insufficient size, and that they take into account the transport needs of the population. The French Republic emphasises, in that regard, that the discretion which Member States have in transposing Directive 2008/50 must be exercised in compliance with the provisions of the Treaties, in particular the fundamental principle of the <mask> and persons, which does not allow, for example, sectoral traffic prohibitions to be introduced.


Second, and in any event, an interpretation which leads to the exclusion of whole animals, such as insects, from the scope of Regulation No 258/97 does not in itself prejudice the objective of protecting human health. As follows from the foregoing considerations, the fact that whole insects do not fall within the scope of that regulation implies only a lack of harmonisation of the conditions for placing them on the market at EU level and, therefore, that no notification or authorisation is necessary under that regulation. According to settled case-law, it is for the Member States, in the absence of harmonisation and to the extent that uncertainties continue to exist, to decide on their intended level of protection of human health and life and on whether to require prior authorisation for the placing on the market of foods, taking into account the requirements of the <mask> within the European Union (see, to that effect, judgment of 29 April 2010, Solgar Vitamin’s France and Others, C‑446/08, EU:C:2010:233, paragraph 35 and the case-law cited). Therefore, the fact that whole insects are exempted from the safety assessment provided for by Regulation No 258/97 does not exclude the possibility for Member States to provide for such an assessment in their national legislation of the possible danger which whole insects may present for public health.


While it applies indiscriminately, the restriction on the lawful means of payment by which a company established in a Member State may pay dividends which have fallen due for payment to its shareholders is liable to dissuade certain investors and non-residents from acquiring a shareholding in a company established in that Member State. It should be observed, in that regard, that the articles of the FEU Treaty relating to the <mask>, persons, services and capital are fundamental provisions of EU law and that any restriction of that freedom, however minor, is prohibited (see, to that effect, judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken Betriebs, C‑514/12, EU:C:2013:799, paragraph 34 and the case-law cited).


The parties and interested parties which have submitted observations to the Court disagree as to whether national measures prohibiting pharmacies from mass-mailing advertising leaflets and offering through their websites reductions above certain purchase thresholds, such as those at issue in the main proceedings, must be examined in the light of the <mask> guaranteed in Article 34 TFEU, as suggested by the referring court, in the light of the freedom to provide services provided for in Article 56 TFEU or in the light of both those freedoms in turn.


The <mask> means that an operator who has bought a medicinal product lawfully marketed in one Member State under a marketing authorisation issued in that State can import that medicinal product into another Member State where it already has a marketing authorisation, without having to obtain such an authorisation in accordance with Directive 2001/83 and without having to provide all the particulars and documentation required by the directive for the purpose of determining whether the medicinal product is effective and safe. Therefore, a Member State must not obstruct parallel imports of a medicinal product by requiring parallel importers to satisfy the same requirements as those which are applicable to undertakings applying for the first time for a marketing authorisation for a medicinal product, subject to the condition, however, that the import of that medicinal product does not undermine the protection of public health (judgment of 3 July 2019, Delfarma, C‑387/18, EU:C:2019:556, paragraphs 21 and 22 and the case-law cited).


60. It will not be necessary to analyse the Italian legislation in the light of Article 18 TFEU because this applies only in the event that there are no more specific provisions that reflect the principle of non-discrimination. (31) This is [not] the case in the context of the <mask> (which includes electricity imports), since Articles 30, 34 and 110 TFEU refer specifically to the principle of non-discrimination, which Article 18 TFEU establishes generically.


According to the applicants, since the requested harmonised standards form part of EU law, as the Court of Justice held in its judgment of 27 October 2016, James Elliott Construction (C‑613/14, EU:C:2016:821), there is an ‘automatic overriding public interest’ justifying the disclosure of those harmonised standards. They rely inter alia on the principle of legal certainty, which can be guaranteed only by proper publication of the law in the official language of the addressee of that law. They also refer to the case-law of the European Court of Human Rights on the accessibility of the law. They also emphasise the link between the accessibility of standards and the proper functioning of the internal market. Lastly, they submit that the principle of good administration, laid down in Article 41 of the Charter, and the <mask> and the freedom to provide services, guaranteed in Articles 34 and 56 TFEU, require free access to the standards.


35 It should be specified in that respect that the fact that a right or permits are set down in documents which, as such, may be the subject of trade is not sufficient to bring them within the scope of the provisions of the Treaty relating to the <mask>, as opposed to those relating to the freedom to provide services (see, to that effect, judgment of 21 October 1999, Jägerskiöld, C‑97/98, EU:C:1999:515, paragraphs 35 and 36).


‘The award of public contracts by or on behalf of Member States’ authorities has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the <mask>, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that those principles are given practical effect and public procurement is opened up to competition.’


Fourthly, infringement of the right to work and to the free choice of occupation, freedom to conduct a business and the <mask> and services, because it is impossible for religious butchers to practise their occupation, in that it is impossible for butchers and butcher’s shops to offer meat to their customers with the guarantee that it comes from animals that have been slaughtered in accordance with religious rules, and because it distorts competition between slaughterhouses located in the Flemish Region and slaughterhouses located in the Brussels Capital Region or in another Member State of the European Union where the slaughter of animals without stunning is permitted;


In the third place, although the referring court in Case C‑407/19 has also referred, in the wording of its questions, to Articles 34 and 35 TFEU, relating to the <mask>, it should be borne in mind, however, that it has not given any indication as to the practical effect on that freedom of national legislation such as that referred to in those questions.


56 The City of Brussels disputes that the General Court confused Directive 2007/46 with Directive 2008/50. In any event, it is not contested that the measures adopted by the respondent cities must comply with EU law, whether it be Directive 2008/50 or the principle of <mask>. Those considerations are, however, insufficient to support the conclusion that the regulation at issue does not prevent those cities from exercising their own powers as they see fit.


‘Member States may only adopt or maintain additional national provisions on products covered by a Union marketing standard if those provisions comply with Union law, in particular the principle of <mask>, and subject to Directive 98/34/EC of the European Parliament and of the Council [of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37)].’


However, and as is clear from paragraph 48 of the present judgment, in relation to the <mask>, persons, services and capital the measures adopted by the EU legislature, whether measures for the harmonisation of legislation of the Member States or measures for the coordination of that legislation, not only have the objective of facilitating the exercise of one of those freedoms, but also seek to ensure, when necessary, the protection of other fundamental interests recognised by the Union which may be affected by that freedom.


As the Court has pointed out, in the absence of a pricing mechanism, the free formation of selling prices on the basis of fair competition is a component of Regulation No 1308/2013 and constitutes the expression of the principle of <mask> in conditions of effective competition (see, to that effect, judgment of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 20).


When dealing with the first question for a preliminary ruling, I have already expressed the view that the Court does not have sufficient information to determine whether national legislation making the use of esterified vegetable oils as fuel in an installation producing emissions into the atmosphere subject to compliance with the regulations on waste incineration constitutes an unwarranted obstacle to the <mask> enshrined in Article 34 TFEU (see points 73 and 74 of this Opinion).


3 Recitals 4 and 49 of Directive 2011/83 are worded as follows: ‘(4) In accordance with Article 26(2) TFEU, the internal market is to comprise an area without internal frontiers in which the <mask> and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity. … (49) Certain exceptions from the right of withdrawal should exist, both for distance and off-premises contracts. … The granting of a right of withdrawal to the consumer could also be inappropriate in the case of certain services where the conclusion of the contract implies the setting aside of capacity which, if a right of withdrawal were exercised, the trader may find difficult to fill. This would for example be the case where reservations are made at hotels or concerning holiday cottages or cultural or sporting events.’


24. Axpo has appealed the judgment of 18 September 2017 to the Consiglio di Stato (Council of State, Italy), requesting that the Italian legislation at issue be disapplied. In support of its claim, it argues, in essence, that the obligation to purchase green certificates in order to be able to import RES-E infringes the rules of the TFEU concerning State aid, the customs union, the <mask> and equal treatment, as well as the EEC-Switzerland Agreement.


As Daniel B and Others and the Spanish Government argue, the patient’s option of consulting the pharmacist before placing an order, even when coupled with checks on the quantities purchased following the first order, is not as effective as verification at an earlier stage – by means of the prior collection of information from the patient – that his order is, in quantitative and qualitative terms, appropriate for his state of health. Moreover, the Court has already ruled that ‘an increase in the number of online interactive features, which the customer must use before being able to proceed to a purchase’ of a medicinal product is a measure which is less detrimental to the <mask>, is acceptable as an alternative to a prohibition of the online sale of medicinal products and permits as effectively attainment of the objective of reducing the risk of misuse of medicinal products purchased online.


‘It is essential for the establishment of the internal market that all internal frontiers in the [European Union] be dismantled so as to enable the <mask>, persons, services and capital. The proper operation of the single market in payment services is therefore vital. At present, however, the lack of harmonisation in this area hinders the operation of that market.’


a description of the method of obtaining the product and, where appropriate, the authentic and unvarying local methods as well as information concerning packaging, if the applicant group so determines and gives sufficient product-specific justification as to why the packaging must take place in the defined geographical area to safeguard quality, to ensure the origin or to ensure control, taking into account Union law, in particular that on the <mask> and the free provision of services;


Secondly, as the Board of Appeal stated, in essence, in paragraphs 31 and 32 of the contested decision, although it is clear from Article 9(1) of Regulation No 207/2009 (now Article 9(1) of Regulation 2017/1001) that the registration of an EU trade mark confers on the proprietor exclusive rights therein, it follows from recital 10 of Regulation No 207/2009 (now recital 24 of Regulation 2017/1001) that there is no justification for protecting EU trade marks or, as against them, any trade mark which has been registered before them, except where the trade marks are actually used. An EU trade mark which is not used could obstruct competition by limiting the range of signs which can be registered as trade marks by others and by denying competitors the opportunity to use that trade mark or a similar one when putting onto the internal market goods or services which are identical or similar to those covered by the mark in question. Consequently, non-use of an EU trade mark also risks restricting the <mask> and services (see, to that effect, judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 32).


That directive, as is apparent, in essence, from recital 1, seeks to ensure compliance, in the award of public contracts, with, inter alia, the <mask>, freedom of establishment and the freedom to provide services, as well as with the principles deriving therefrom, in particular equal treatment, non-discrimination, proportionality and transparency, and to ensure that public procurement is opened up to competition.


In support of its action against that decision before the referring court, Delfarma criticised the President of the Office for failing to compare the two medicinal products concerned although he had information obtained from the competent authority in the United Kingdom and that, under Article 21a(5) of the Law on medicinal products, he had the option to request further information from that authority if he considered it necessary. Delfarma asserts that the President of the Office wrongly held that Article 2(7b)(b) of that law was justified on ground of safety, as his interpretation of that provision led him to exclude the option of carrying out an examination as to whether those two medicinal products are therapeutically identical, and it led to a decision which constitutes a restriction on the <mask> which is not justified on the basis of Article 36 TFEU.


Furthermore, since Directive 2000/35, adopted on the basis of Article 95 EC (now Article 114 TFEU), falls within the framework of the approximation of the laws of the Member States, the object of which is the establishment and functioning of the internal market, account may be taken, for the purposes of its interpretation, of the concepts of ‘goods’ and ‘services’ within the meaning of the provisions of the FEU Treaty providing for the <mask> and services, and the Court’s case-law interpreting those fundamental freedoms (see, by analogy, judgment of 9 July 2020, RL (Directive combating late payment), C‑199/19, EU:C:2020:548, paragraph 30).


The Court   has held that ‘it follows … from [those recitals] that the [EU] legislature intended to make the preservation of the rights connected to the trade mark conditional upon it actually being used. … [an EU] trade mark which is not used could obstruct competition by limiting the range of signs which can be registered as trade marks by others and by denying competitors the opportunity to use that trade mark or a similar one when putting onto the internal market goods or services which are identical or similar to those covered by the mark in question. Consequently, non-use of [an EU] trade mark also risks restricting the <mask> and services’. While it is true that those comments refer to the purpose of revocation after five years of non-use, the sentiments expressed apply to the requirement of use throughout the life cycle of a mark, and so concerns about the cluttering of the register further lend support to a need for greater precision.   The Court has previously held that the register of trade marks needs to be ‘appropriate and precise’.   Indeed, register clutter imbalances the IP ‘bargain’ against the public interest, which requires those seeking protection to specify with clarity what it is they seek validly to protect.


Ibid., paragraph 37: ‘the widest possible opening-up to competition is contemplated not only from the point of view of the Community interest in the <mask> and services but also the interest of the contracting authority concerned itself, which will thus have greater choice as to the most advantageous tender which is most suitable for the needs of the public authority in question’.


‘Emergency ambulance transport services may be awarded as a priority, by direct contracting, to volunteer organisations which have been registered for at least 6 months in the national third sector register, which belong to a network of associations for the purposes of Article 41(2), and which are accredited under the relevant regional legislation, if any, where, by reason of the particular nature of the service, direct contracting ensures that a service which is in the public interest can be provided within a framework of effective contributions to social goals, which pursues objectives of solidarity, in an economically efficient and appropriate manner, and in accordance with the principles of transparency and <mask>.’


In support of his claims for annulment, the applicant relies on four pleas in law, alleging, first, infringement of Article 1.4 of the Staff Rules and Article 11 of Annex VII to those rules; second, infringement of the principles of legitimate expectations, the predictability of the law and the duty to have regard to the welfare of staff; third, infringement of the principle of <mask>, of Article 1.3 of the EIB’s Staff Code of Conduct and of Article 21 of the Charter of Fundamental Rights of the European Union; and, fourth, infringement of the principle of sound administration and of the ‘reasonable time’ principle.


As follows, in essence, from paragraph 48 of the present judgment, the fact that an in-house transaction, within the meaning of Article 12(1) of Directive 2014/24, does not fall within the scope of that directive cannot relieve the Member States or the contracting authorities of the obligation to have due regard to, inter alia, the principles of equal treatment, <mask>, mutual recognition, proportionality and transparency.


43 While it is admitted that the restrictions adopted by Member States, while establishing their rural development programme, must not deprive the Natura 2000 payments system of its the compensatory aim (see, to that effect, judgment of 30 March 2017, Lingurár, C‑315/16, EU:C:2017:244, paragraph 28), the fact remains that those Member States may decide how the measures to achieve the objectives set out in Regulation No 1305/2013 are to be implemented in practice. Furthermore, when making these choices, those States must observe the general principles of EU law, such as <mask> and proportionality (see, to that effect, concerning the principle of proportionality, judgment of 30 March 2017, Lingurár, C‑315/16, EU:C:2017:244, paragraph 29 and the case-law cited).


I do not agree with this reasoning. First, the rules set out in Directive 94/22 are part of the body of public procurement rules, not of the competition rules. Although both sets of rules have the purpose of facilitating competition within the EU, which in turn aims at the furthering of the creation of an internal market, they have different starting points. While public procurement law regulates the behaviour of public authorities or public undertakings or undertakings that operate on the basis of special or exclusive rights granted by a Member State, competition rules deal with economic activities of undertakings.   As such, the respective rules act at different levels. Whereas Articles 101 and 102 TFEU limit certain uncompetitive behaviour and the Merger Regulation   aims to prevent structural changes to the market due to concentrations which would significantly impede effective competition, public procurement rules intend to give equal access to the market to all interested entities by applying the principles of transparency and <mask>. Only the Merger Regulation prevents the creation of a dominant position and that only in case of a concentration.


The applicants submit that the examination conducted by the Commission was inadequate, in particular as regards the proportionality of the measure at issue and its compatibility with the principle of <mask> and the principles of the free provision of services and of the freedom of establishment. The inadequate nature of that examination is evidence of the existence of serious difficulties, which should have led the Commission to open the formal investigation procedure and give the applicants the opportunity to submit their observations and, thus, to influence that investigation.


During the legislative procedure, that rule was supplemented to make it clear that the principle of <mask> did not prevent the introduction of modulations to charges on objective and transparent public-interest grounds (Legislative Resolution of the European Parliament of 15 January 2008 on the Proposal for a Directive of the European Parliament and of the Council on airport charges (COM(2006) 0820 — C6‑0056/2007 — 2007/0013(COD)). Article 3 of the Directive refers to those modulations on the basis of ‘relevant, objective and transparent criteria’. In a similar vein, the Directive allows the level of charges to be varied in the event of different infrastructures or levels of service. However, these cannot be offered in a discriminatory manner (recital 15 and Article 10 of the Directive). Access is to be decided upon on the basis of objective criteria to be ‘developed by an airport managing body’.


Is the fact that taxable persons under foreign ownership which operate a number of retail establishments through a single company and which are engaged in store retail trade in fact have to pay the special tax corresponding to the highest band of a steeply progressive tax rate, whereas taxable persons under domestic ownership operating as a franchise under a single banner — through stores which generally constitute independent companies — are in fact included in the exempt band or are subject to one of the lower tax rates following that band, with the result that the proportion of the tax paid by companies under foreign ownership of the total tax collected through the special tax is substantially higher than in the case of taxable persons under domestic ownership, compatible with the provisions of the FEU Treaty governing the principles of <mask> (Articles 18 TFEU and 26 TFEU), freedom of establishment (Article 49 TFEU), equal treatment (Article 54 TFEU), equal treatment as regards financial participation in the capital of companies or firms within the meaning of Article 54 TFEU (Article 55 TFEU), freedom to provide services (Article 56 TFEU), free movement of capital (Articles 63 TFEU and 65 TFEU) and equality of taxation of companies (Article 110 TFEU)?


In that regard, it seems to me relevant to note at the outset that the general EU law principle of <mask> ‘has been implemented and put into effect by the framework agreement solely as regards differences in treatment as between fixed-term workers and permanent workers in a comparable situation’.   However, any differences in treatment between specific categories of fixed-term workers, such as those between fixed-term interim civil servants and fixed-term contract workers, are not covered by the principle of non-discrimination established by the framework agreement.


The sectoral proceedings were based on Article 144ter of the Law of 21 March 1991 on the reform of certain public commercial undertakings, imposing on universal postal service providers a number of <mask> and transparency obligations when adopting and applying their tariff systems. In this context, the IBPT stated expressly in its decision that it was not assessing whether bpost’s conduct complied with EU or national competition rules, especially since it does not have the competence to do so.


Academic authorities have also lamented the relaxation of the three-step test of justification which, in order to be objective, requires that the means chosen, first, correspond to a real need (reality), second, are appropriate to achieving the objective in question (appropriateness) and, third, are necessary to that end (proportionality). According to those authorities, the Court applies that test more strictly and systematically in relation to indirect discrimination based on nationality than in relation to the matters subject, inter alia, to Directive 79/7. See, among others, Barnard, C. and Hepple, B., ‘Indirect Discrimination: Interpreting Seymour-Smith’, Cambridge Law Journal, 58(2), 1999, pp. 399-412, especially pp. 409-412: ‘The real problem is that while the Court of Justice is capable of pronouncing on questions of formal equality, it lacks access to the statistical and social science advice which is needed to assess arguments about disparate impact and objective justification’; Bell, M. and Waddington, L., ‘More Equal than Others: Distinguishing European Union Equality Directives’, Common Market Law Review, Vol. 38, 2001, pp. 587-611, especially p. 593; and Vielle, P. and Wuiame, N., op. cit., p. 22. On the importance of applying that test strictly in the context of discrimination on grounds of sex, see Mulder, J., Indirect sex discrimination in employment. Theoretical analysis and reflections on the CJEU case-law and national application of the concept of indirect sex discrimination, European network of legal experts in gender equality and <mask>, European Commission, Brussels, 2020, p. 130.


Here, the General Court ascertains whether the situation of a deceased official who was in a stable, long-term informal union and who financially supported his or her partner with his or her income, is comparable to that of a deceased official who was married, with no mention of registered partners who do not have access to marriage   although they are mentioned in paragraph 32 of the judgment, even though the appellant compares, in particular, legally recognised unions and de facto unions in support of his allegation of a breach of the principle of <mask>.


(Reference for a preliminary ruling — Polluter pays principle — Directive 2000/60/EC — Article 9(1) — Recovery of the costs of water services — Common rules for the internal market in electricity — Directive 2009/72/EC — Article 3(1) — Principle of <mask> — Article 107(1) TFEU — State aid — Tax on the use of inland waters for the production of electricity — Tax imposed only on hydroelectricity producers operating on inter-communities river basins)


Article 63 of the Financial Regulation states that ‘where the Commission implements the budget under shared management, tasks relating to budget implementation shall be delegated to Member States. The Commission and Member States shall respect the principles of sound financial management, transparency and <mask> and shall ensure the visibility of the Union action when they manage Union funds. To that end, the Commission and Member States shall fulfil their respective control and audit obligations and assume the resulting responsibilities laid down in this Regulation. Complementary provisions shall be laid down in sector-specific rules’.


The Commission submits that the rationale for compensating for net costs is to restore competitive fairness between the undertakings concerned, so that, in the present case, compliance with the principle of <mask> required that only the turnover of operators present on the telecommunications market in Portugal when the net costs were incurred should be taken into account. The extraordinary contribution applied to all operators present on the market between 2013 and 2015, including those which were absent from it or present in another form between 2007 and 2013. More specifically, the Commission states that significant changes took place in the telecommunications market in Portugal, particularly as a result of concentrations and conversions of undertakings. For those reasons, the Commission argues that the undertakings concerned, in their new form, were discriminated against because they were required to pay a contribution calculated on the basis of their turnover in respect of years that were not the years to which the net costs related.


193 The preamble to the Charter states, inter alia, that the European Union is based on the principles of democracy and the rule of law and recognises the rights, freedoms and principles set out in the Charter. Articles 6, 10 to 13, 15, 16, 20, 21 and 23 of the Charter define the scope of the values of human dignity, freedom, equality, respect for human rights, <mask> and equality between women and men, contained in Article 2 TEU. Article 47 of the Charter and Article 19 TEU guarantee, inter alia, the right to an effective remedy and the right to an independent and impartial tribunal previously established by law, as regards the protection of the rights and freedoms guaranteed by EU law.


In support of that application, Vialto raised two pleas relating to the unlawfulness of OLAF’s conduct, alleging, first, an infringement of Article 7(1) of Regulation No 2185/96 and, second, a breach of the right to sound administration, of the principle of <mask>, of the principle of proportionality and of the principle of the protection of legitimate expectations. In addition, Vialto submitted a complaint concerning the unlawfulness of the Commission’s conduct, alleging infringement of the right to be heard.


In his second plea, which can also be divided into two parts, the applicant submits that the principle of equality and <mask> precluded his entitlement to the expatriation allowance from being reassessed in the light of the requirements prescribed by Article 4(1)(b) of Annex VII to the Staff Regulations. In the first part, he claims that he was treated as if he had had Belgian nationality during the 10 years preceding his entering the service, whereas he was a United Kingdom national during that time. In the second part, he states that, in the circumstances of the present case, application of that provision affected officials with United Kingdom nationality more than all others.


This request for a preliminary ruling concerns the interpretation of Article 12(3) of Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC (OJ 2004 L 52, p. 50), of Article 107(1) TFEU and of the principles of equal treatment and <mask>.


In the light of the foregoing considerations, the answer to the questions referred is that the MiFID, in particular Articles 8, 23, 50 and 51 thereof, Articles 49 and 56 TFEU and the principles of non‑discrimination and proportionality must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a temporary prohibition on exercising the activity of financial adviser authorised to provide offsite services falls neither within the scope of that directive, nor that of Articles 49 and 56 TFEU or that of the principles of non‑discrimination and proportionality. In such circumstances, Articles 8, 23, 50 and 51 of that directive, Articles 49 and 56 TFEU and the principles of <mask> and proportionality do not preclude such a prohibition.


This request for a preliminary ruling concerns the interpretation of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1), as amended by Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010 (OJ 2010 L 331, p. 120) (‘the MiFID’), in particular Articles 8, 23 and 51 thereof, and the principles and provisions of the Treaties with regard to <mask>, proportionality, freedom to provide services and freedom of establishment.


It is common ground that, in the two judgments under appeal, the General Court carried out a limited review of legality on the ground that the setting of the conditions and detailed rules for the reimbursement of annual travel expenses and travelling time falls within an area of legislation in which the legislature enjoys a broad discretion. In such an area, the General Court held that it was required merely to ascertain, as regards observance of the principle of equal treatment and the principle of <mask>, whether the institution concerned had applied a distinction which was arbitrary or manifestly inappropriate, and, as regards the principle of proportionality, whether the measure adopted was manifestly inappropriate in relation to the objective pursued by the rules.


29. The appellant in the main proceedings, the Republic of Poland and the Portuguese Republic, albeit with slightly different reasoning, propose that the question referred should be answered in the affirmative: conduct such as that adopted by the employer in the present case constitutes, in their view, discrimination prohibited by Directive 2000/78. The respondent in the main proceedings and the European Commission, on the other hand, propose that the question should be answered in the negative, on the ground that the situation under examination does not come within the scope of Directive 2000/78. B. The general principles of equal treatment and <mask> and the purpose of Directive 2000/78


8. Recital 69 is worded as follows: ‘Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, <mask> and equal treatment and which guarantee that tenders are assessed in a transparent and objective manner under conditions of effective competition. As a result, it is appropriate to allow the application of two award criteria only: “the lowest price” and “the most economically advantageous tender”.’


As regards the principle of <mask>, which forms an integral part of the general principles of EU law, it is apparent from the case-law of the Court that that principle must be observed by any national legislation which falls within the scope of EU law or which implements EU law (see, to that effect, judgment of 7 November 2019, UNESA and Others, C‑80/18 to C‑83/18, EU:C:2019:934, paragraph 47 and the case-law cited).


When a universal service obligation represents an unfair burden on an undertaking, it is appropriate to allow Member States to establish mechanisms for efficiently recovering net costs. Recovery via public funds constitutes one method of recovering the net costs of universal service obligations. It is also reasonable for established net costs to be recovered from all users in a transparent fashion by means of levies on undertakings. Member States should be able to finance the net costs of different elements of universal service through different mechanisms, and/or to finance the net costs of some or all elements from either of the mechanisms or a combination of both. In the case of cost recovery by means of levies on undertakings, Member States should ensure that the method of allocation amongst them is based on objective and non-discriminatory criteria and is in accordance with the principle of proportionality. This principle does not prevent Member States from exempting new entrants which have not yet achieved any significant market presence. Any funding mechanism should ensure that market participants only contribute to the financing of universal service obligations and not to other activities which are not directly linked to the provision of the universal service obligations. Recovery mechanisms should in all cases respect the principles of Community law, and in particular in the case of sharing mechanisms those of <mask> and proportionality. Any funding mechanism should ensure that users in one Member State do not contribute to universal service costs in another Member State, for example when making calls from one Member State to another.


Moreover, it is important to note that the fundamental principles of EU law, such as equal treatment and transparency, are applicable to the conclusion of a framework agreement; this follows from the first subparagraph of Article 33(1) of Directive 2014/24. Not only the principles of equal treatment and <mask>, but also the principle of transparency that stems from them imply that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 19 December 2018, Autorità Garante della Concorrenza e del Mercato – Antitrust and Coopservice, C‑216/17, EU:C:2018:1034, paragraph 63).


In the light of the foregoing, the answer to part (a) of the third question is that Article 12(1) of Directive 2014/24 must be interpreted as not precluding a rule of national law whereby a Member State imposes a requirement that the conclusion of an in-house transaction should be subject, inter alia, to the condition that public procurement fails to ensure that the quality of the services performed, their availability or their continuity can be guaranteed, provided that the choice made in favour of one means of providing services in particular, made at a stage prior to that of public procurement, has due regard to the principles of equal treatment, <mask>, mutual recognition, proportionality and transparency.