Article 30(6) of Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009, read in conjunction with Article 28(2) of Commission Delegated Regulation (EU) No 639/2014 of 11 March 2014 supplementing Regulation No 1307/2013 and amending Annex X to that regulation, must be interpreted as meaning that a young farmer, within the meaning of Article 30(11)(a) of Regulation No 1307/2013, read in conjunction with Article 50(2) of that regulation, who has already received, under Article 24 of that regulation, an initial allocation of payment entitlements in respect of the eligible hectares which he or she has declared at the time of his or her application is entitled to receive, subsequently, a further allocation of payment entitlements from the national reserve equal to the number of additional eligible hectares that he or she now holds and for which he or she has not received any payment entitlement. That right is subject to the existence of sufficient available funds in the national or regional reserves. If that is not the case, the allocation must be made in such a way as to ensure the equal treatment of farmers eligible for entitlements under Article 30(6) of Regulation No 1307/2013 and to avoid distortions of the market and of <mask>.


Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a civil action for damages, based on infringement of the rules of <mask> law, comes under ‘matters relating to tort, delict or quasi-delict’, within the meaning of that provision, including where the claimant and the defendant are parties to a contract and the alleged anticompetitive acts of which the former complains against the latter materialise in their contractual relations.


130. That is all the more surprising for the fact that the Commission itself appears to begin from the premiss that the comparison of prices should be made ‘at the level where <mask> in the EU takes place’ (emphasis added), as is expressly apparent from recital 122 of the regulation at issue. In that context, reference should be made to the judgment in Kazchrome, (53) which has become final, in which the General Court stated that competition takes place at the level of the prices ‘which could have led customers to opt for the applicants’ goods instead of those of the [EU] industry’. (54) That is necessarily where the related sales entity of an exporting producer established in the European Union sells to its end customer, and not at an intermediate stage. (55) It should be pointed out in that context that that approach has been applied more recently in the judgment in Jindal Saw, (56) and must therefore be regarded as sufficiently established in the case-law.


It is necessary and in the interest of recipients, in particular consumers, to ensure that it is possible for providers to offer multidisciplinary services and that restrictions in this regard be limited to what is necessary to ensure the impartiality, independence and integrity of the regulated professions. This does not affect restrictions or prohibitions on carrying out particular activities which aim at ensuring independence in cases in which a Member State entrusts a provider with a particular task, notably in the area of urban development, nor should it affect the application of <mask> rules.’


In order to rule on the first complaint, it is necessary, first of all, to clarify the scope of Hungary’s commitments in respect of higher education services in the light of the rule on national treatment set out in Article XVII of the GATS; next, to examine the question whether the requirement of a prior international treaty modifies the conditions of <mask> to the benefit of national providers of such services or of the services which they supply, contrary to that provision; and, last, if so, to examine the arguments by which Hungary seeks to justify that modification on the basis of one of the exceptions provided for in Article XIV of the GATS.


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 <mask> 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 free movement of goods and services (see, to that effect, judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 32).


Advocate General Ruiz-Jarabo Colomer considered that ‘the test of the territorial extent of the unlawful conduct is not substantive, but adjectival, since it does not affect the nature of the infringement, but only its intensity’. He disagreed with the approach taken in the judgment in Wilhelm and Others stating that: ‘the rules which guarantee free <mask> within the European Union do not allow a distinction to be drawn between separate areas, the Community area and the national areas, as though there were watertight compartments. Both sectors are concerned with the supervision of free and open competition in the common market, one contemplating it in its entirety and the other from its separate components, but the essence is the same.’ See Opinions of Advocate General Ruiz-Jarabo Colomer in Aalborg Portland and Others (C‑217/00 P, EU:C:2003:83, points 176, 173 and footnote 121), and in Aalborg Portland and Others (C‑213/00 P, EU:C:2003:84, points 94, 91 and footnote 71).


In the present case, in so far as the conduct at issue in the main proceedings which took place between 1999 and 1 May 2004 directly related to air transport services between airports in the European Union and in third countries and was capable of affecting trade between Member States for the purposes of Article 81(1) EC, which it is for the referring court to verify, that conduct did not fall within the scope of the provisions adopted pursuant to Article 83 EC, but was covered solely by the arrangements providing for the implementation of <mask> rules laid down in Articles 84 and 85 EC.


Thus, if an established operator eliminated, by such an agreement, a single insignificant potential competitor, among others, the effects on <mask> might not be appreciable, since there would continue to be competition between the established operator and the other potential competitors. However, if the established operator eliminates, by one or more agreements of that type, its sole or its few significant potential competitors, those agreements would affect to a very appreciable extent competition on the market concerned, or even eliminate it, at least for some time before new potential competitors emerged.


11 Recitals 3 to 6 of Directive 2011/96 are worded as follows: ‘(3) The objective of this Directive is to exempt dividends and other profit distributions paid by subsidiary companies to their parent companies from withholding taxes and to eliminate double taxation of such income at the level of the parent company. (4) The grouping together of companies of different Member States may be necessary in order to create within the Union conditions analogous to those of an internal market and in order thus to ensure the effective functioning of such an internal market. Such operations should not to be hampered by restrictions, disadvantages or distortions arising in particular from the tax provisions of the Member States. It is therefore necessary, with respect to such grouping together of companies of different Member States, to provide for tax rules which are neutral from the point of view of <mask>, in order to allow enterprises to adapt to the requirements of the internal market, to increase their productivity and to improve their competitive strength at the international level. (5) Such grouping together may result in the formation of groups of parent companies and subsidiaries. (6) Before the entry into force of [Council] Directive 90/435/EEC [of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6),] the tax provisions governing the relations between parent companies and subsidiaries of different Member States varied appreciably from one Member State to another and were generally less advantageous than those applicable to parent companies and subsidiaries of the same Member State. Cooperation between companies of different Member States was thereby disadvantaged in comparison with cooperation between companies of the same Member State. It was necessary to eliminate that disadvantage by the introduction of a common system in order to facilitate the grouping together of companies at Union level.’


In conclusion, the bank of experience relied on before the Court to support the view that agreements such as the one at issue in the main proceedings are, by their very nature, harmful to <mask> appears rather meagre. However, it will be for the referring court to verify this point in detail, in view of the arguments and documentation relied on in the administrative decision in question.


According to the Court’s case-law, the Commission may adopt a decision on commitments when three conditions are fulfilled:   (i) the Commission must express <mask> concerns, without it being necessary for it to establish that the conduct in question constitutes an infringement; (ii) the undertaking must offer commitments that adequately address the concerns expressed by the Commission; (iii) the decision to accept the commitments must in any event comply with the principle of proportionality, which is a general principle of EU law and is a criterion for the lawfulness of any act of the institutions of the European Union, including decisions taken by the Commission in its capacity as competition authority.


The Commission, supported by the ETPA, argues that the grounds set out in paragraphs 196 to 205 and 208 to 213 of the judgment under appeal are vitiated by an error of law. The General Court found that the Commission, in the context of the calculation of the injury margin, was required to calculate the undercutting margin relating to resales of jumbo rolls by related companies on the basis of sales prices agreed between Schades and its independent customers and not, as it did, by applying, by analogy, Article 2(9) of the basic regulation by reducing the actual sales prices to a CIF EU border value. However, since there is no definition of, or method for calculating, the undercutting margin, the Commission submits that that calculation was within its broad discretion. In addition, its calculation was justified in view of Article 3(3) of the basic regulation, which provides that the issue of whether there has been significant price undercutting must be examined at the level of ‘the dumped imports’ and not at the level of their subsequent resale price on the Union market. The General Court’s assessment incorrectly consisted of an assessment under <mask> law instead of trade policy law and incorrectly constructed, in a discriminatory manner, a separate export price for the calculation of the amount of dumping from the export price taken into account for the purpose of establishing injury.


First, as regards the applicant’s argument that the amount of the fines is disproportionate in the light of the size of the undertaking and the fine imposed by the Commission in its decision C(2009) 4416 final of 10 June 2009, imposing a fine for the implementation of a concentration in breach of Article 7(1) of Council Regulation (EEC) No 4064/89 (Case COMP/M.4994 – Electrabel/Compagnie nationale du Rhône), the fact that in the past the Commission has applied fines of a particular level for certain types of infringements does not mean that it is precluded from raising that level within the limits indicated in the relevant legislation if that is necessary to ensure the implementation of EU <mask> policy. Indeed, the proper application of the EU competition rules requires that the Commission be able at any time to adjust the level of fines to the needs of that policy (see judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 603 and the case-law cited).


Indeed, at the end of its analysis of the first two of the abovementioned criteria – namely Pometon’s individual liability and the concrete influence of its infringing conduct on price <mask> –, the General Court concludes, on the one hand, in paragraph 382 of the judgment under appeal, that Pometon, ‘unlike Ervin and Winoa, but like MTS and Würth, had a more limited role overall in the cartel’ and, on the other hand, in paragraph 386 of the judgment under appeal, that the comparison of the value of specific sales in the EEA shows that ‘Pometon’s weight in the infringement is four times less than that of Winoa, but is relatively close to that of MTS and far higher than that of Ervin and Würth’. It is therefore only in the light of the third criterion – namely the size of the undertaking – that the General Court observes, in paragraph 390 of the judgment under appeal, that the appellant was in a different situation from that of MTS since its turnover in the last year of full participation in the cartel was EUR 99890000 instead of EUR 25082293 for MTS.


This means that, despite the serious consequences that application of the selection criteria had for Mr Di Bernardo, EPSO prevented him from learning what they were and, once he knew them and if applicable, from providing more targeted information on the aspects at issue. The scope of the statement of reasons must also be assessed by reference to the interest which the addressees of the measure may have in obtaining explanations.   As the General Court very correctly observed in paragraph 53 of the judgment under appeal, it was not until ‘during the [annulment] proceedings’ that the Commission ‘only gradually’ provided the statement of reasons of the decision at issue, necessary in order to assess whether it was lawful. It was therefore at a very late stage that Mr Di Bernardo was able to formulate an opinion on his allegedly insufficient professional experience. The General Court therefore committed no error of law whatsoever when it found that EPSO should have communicated the selection criteria in good time, that is to say, in the <mask> notice, in the letter of 27 October 2015 or, in any event, in its letter of 10 August 2016 responding to the request for review.   That approach was in my view all the more necessary since the request for review must be interpreted as a request to be given individual explanations, as the General Court noted in paragraph 51 of the judgment under appeal. The Commission’s claim that Mr Di Bernardo did not at any time seek to know what the selection criteria were should accordingly be rejected, since that argument amounts to questioning EPSO’s obligation to the applicants in the competition.


Much as this may be the most correct interpretation of the referring court’s uncertainty, the fact remains that the Court continues to lack key data that would enable it to give a ruling with even a minimum degree of rigour on that uncertainty. That lack of data is apparent in particular in relation to the determination of whether the abuse was inevitable: i) in the context of a relevant market which has not been precisely specified; ii) given the <mask> between banking institutions; and iii) in the presence of services that may be substituted for those provided by Poste Italiane.


29. However, Article 1 of Directive 2014/104, entitled ‘Subject matter and scope’, states, in paragraph 2 thereof, that that directive sets out rules coordinating, inter alia, the enforcement of the <mask> rules ‘in damages actions before national courts’. Similarly, Article 22(2) of that directive, which concerns the temporal application of national transposition measures other than those transposing the substantive provisions of that directive, sets out their scope ratione temporis by reference to a date on which a national court was seised of an action for damages. (9)


4. Recital 92 reads: ‘When assessing the best price–quality ratio contracting authorities should determine the economic and qualitative criteria linked to the subject matter of the contract that they will use for that purpose. Those criteria should thus allow for a comparative assessment of the level of performance offered by each tender in the light of the subject matter of the contract, as defined in the technical specifications. In the context of the best price–quality ratio, a non-exhaustive list of possible award criteria which include environmental and social aspects is set out in this Directive. Contracting authorities should be encouraged to choose award criteria that allow them to obtain high-quality works, supplies and services that are optimally suited to their needs. The chosen award criteria should not confer an unrestricted freedom of choice on the contracting authority and they should ensure the possibility of effective and fair <mask> and be accompanied by arrangements that allow the information provided by the tenderers to be effectively verified. …’


It should be recalled, first of all, that, according to Article 1 thereof, Regulation No 561/2006 aims to harmonise the conditions of <mask> in the road transport sector and to improve social conditions for employees to whom it applies, as well as to improve road safety, by requiring road transport vehicles to be equipped with an approved tachograph enabling compliance with driving times, breaks and rest periods for drivers to be monitored.


In view of the fact that applicants seeking aid under an EU fund are in <mask> with one another to a greater or lesser extent, the situation is entirely comparable to that of public procurement law. In that area too, the managing authority must make a selection and inevitably reject some of the applicants. It is possible that the competitive situation in that area is more intense and requires particularly strict equal treatment in the procedure. However, this does nothing to change the fact that the State allocates a limited resource (a contract or funding) to some applicants only, to the exclusion of others. Therefore, the selection procedure must be transparent and non-discriminatory in that area also, as provided for in Article 18(1) of Directive 2014/24.


Accordingly, as has already been mentioned, the General Court concluded in paragraph 182 of the judgment under appeal that there is no doubt that the harm to <mask> caused by the ‘A/R cartel configuration’ was further increased by that ‘European cartel configuration’. In the appeal proceedings, Nexans does not call into question those findings made by the General Court, nor is there any indication that those findings are based on a distortion of evidence presented by Nexans at first instance.


According to the settled case-law of the Court, the relevant point in time for identifying the legislation applicable to a public contract is when the authority not only chooses the type of procedure to be followed but also decides definitively whether it is necessary for a prior call for <mask> to be issued for the award of a public contract.   If such a decision was taken before the date on which the period for transposition of the later directive, here Directive 2014/24, was reached, it would be plainly contrary to the principle of legal certainty to determine the law applicable to the case in the main proceedings by reference to the date of the award of the contract.


In the first place, as regards the preparation of the copy-images of the hard drives of the computers in question, it must be stated that it is apparent both from the wording of Article 20(2)(c) of Regulation No 1/2003 and from its context that, by permitting the Commission, by means of that provision, to ‘take or obtain’ in any form copies of or extracts from the books and other records related to the business as mentioned in Article 20(2)(b) of that regulation, the EU legislature referred to the evidence which the Commission is entitled to obtain, in order to place it in the file and, where appropriate, to use it in proceedings initiated to impose penalties in respect of infringements of EU <mask> law. Such evidence must therefore consist of documents covered by the subject matter of the inspection, which presupposes that the Commission has determined beforehand that that is the case (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 58).


In the light of the foregoing, I propose to answer the first question as follows: Article 26 of Regulation No 1169/2011 should be interpreted as having harmonised the conditions under which the indication of the country of origin or place of provenance of milk used as a final product or as an ingredient may be made mandatory by Member States. That provision does not, however, preclude Member States from making that indication mandatory on the basis of Article 39 of that regulation where this is justified by considerations such as the protection of public health, the rights of consumers, the avoidance of fraud or the prevention of unfair <mask> and where the conditions laid down in that provision are fulfilled.


In the event that the Court does not consider that the contested measure is a selling arrangement in compliance with the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C268/91, EU:C:1993:905) and considers that it is a measure equivalent to a quantitative restriction, Hungary reiterates its claim that the contested measure is both appropriate and proportionate in the light of its objective of general interest to ensure fair commercial dealings and improve the position of producers in the food supply chain. In that regard, Hungary notes that the Commission has not indicated what type of measure would be more proportionate while achieving the same objective. Hungary considers that the restriction of the freedom of retailers improves <mask> between producers, as retailers cannot eliminate a producer’s competitive advantage by applying a higher margin, thus depriving the consumer of the possibility of benefiting from competition in the producers’ market. The application of a higher margin to a product is likely to eliminate the hard-fought purchase price reduction in the producers’ market and the resulting competitive advantage, with the result that the consumer will also have to pay more for the product. By setting the retail margin, the retailer will also have an incentive, in the case of products for which consumers are guided by price, to choose products solely on the basis of their purchase price. This will increase competition at producer level and consumers will also benefit. Furthermore, retailers retain the possibility of applying price reductions when launching new products and of using marketing tools based on a transitional price reduction, provided that the price margins applied to the products are equalised over a six-month period.


I would also have some intellectual difficulty in seeing how exactly the PWD promotes the ‘transnational provision of services’.   If anything, the very purpose of the PWD is to limit the free transnational provision of services, by putting accent on the rights of workers and on a climate of fair <mask>, particularly in relation to the countries to which the workers are being posted.


116. In that regard, first of all, it seems to me indisputable that, from a procedural viewpoint, evidence of an absence of anticompetitive effects put forward ex post must be taken into account by a <mask> authority, in particular when that evidence relates to conduct which ceased well before the decision finding abuse. Indeed, in the judgment in Intel, the Court explained that, in the case where an undertaking submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition, the Commission is required to examine a number of matters in order to assess whether the conduct in question was capable of excluding from the market competitors that were at least as efficient. (104) Moreover, a capacity to foreclose is relevant also to the assessment of whether particular conduct may be objectively justified or whether its restrictive effects may be counterbalanced by advantages in terms of efficiency. (105) In that context, economic evidence demonstrating, after that conduct has come to an end, the absence of exclusionary effects must be considered admissible when the dominant undertaking is seeking to prove the absence of a capacity to restrict competition. Moreover, the anticompetitive effect of a particular practice must not be purely hypothetical (106) and supporting evidence contesting the capacity to restrict competition may corroborate such a hypothetical nature. Therefore, from a procedural viewpoint, since the burden of proving anticompetitive exclusionary effects rests on the competition authorities, I consider that those authorities are under an obligation to take careful account of the evidence produced by the dominant undertaking when they are analysing the possible existence of abuse.


The final award of the contract to CT was challenged before the Tribunale amministrativo regionale, Lombardia-Milano (Regional Administrative Court, Lombardy-Milan, Italy) by AV and BU. In their action AV and BU claimed, inter alia, that the statutory right of pre-emption of employees of municipal pharmacies is contrary to the principles of free <mask> and equal treatment laid down in EU law. They noted that the right of pre-emption entails a significant advantage for those employees. The employees in question may replace competitors in a tender procedure, without even participating in the procedure upon exercising their unconditional right conferred by statute to conclude the contract. AV and BU submitted that the statutory right of pre-emption at issue is not legally justifiable.


In cases such as those described in the previous two points, the failure of <mask> law to intervene would result in a false negative since — according to the concept of market self-correction — the price would mistakenly be considered not to be above the competitive price. In cases of this type, there is more at issue than simply the distortion of competition. Indeed, this could amount to an attack on some of the fundamental values of our society, such as social equality, where there is a point at which differences in the possession of basic goods cannot depend on earning capacity without undermining social cohesion. In our society, healthcare — and thus the availability of medicines considered essential — and the consumption of culture are intrinsic aspects of belonging to a community. In those areas, therefore, the issue of ‘unfair prices’ is more acute. This is especially the case during an economic recession or when there is heightened public awareness of social inequality. The concept of excessive prices characterises EU competition law precisely because it is framed within a legal system and is engendered by an economic culture which makes reference to the ‘social market economy’ (Article 3(3) TEU).


It is also apparent from Article 13 of Directive 2002/20, read in conjunction with recital 32 thereof, that a fee charged to operators of telecommunications services for the use of radio frequencies must pursue the purpose of ensuring optimal use of those frequencies and not hinder the development of innovative services and <mask> on the market (judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 47).


The Court held on that occasion that ‘Article 102 TFEU and the principle of effectiveness must be interpreted as precluding national legislation which, first, provides that the limitation period in respect of actions for damages is three years and starts to run from the date on which the injured party was aware of its right to compensation, even if unaware of the identity of the person liable and, secondly, does not include any possibility of suspending or interrupting that period during proceedings before the national <mask> authority’.


(Competition – Agreements, decisions and concerted practices – Market for aluminium electrolytic capacitors and tantalum electrolytic capacitors – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Price coordination throughout the EEA – Concerted practice – Exchanges of sensitive business information – Territorial jurisdiction of the Commission – Rights of the defence and right to be heard – Inalterability of the measure – Single and continuous infringement – Restriction of <mask> by object – 2006 Guidelines on the method of setting fines – Value of sales – Obligation to state reasons – Proportionality – Equal treatment – Gravity of the infringement – Mitigating circumstances – Point 37 of the 2006 Guidelines on the method of setting fines – Unlimited jurisdiction)


73. As a rule, then, ‘technical specifications should be drafted in such a way as to avoid artificially narrowing down <mask> through requirements that favour a specific economic operator by mirroring key characteristics of the supplies, services or works habitually offered by that economic operator. Drawing up the technical specifications in terms of functional and performance requirements generally allows that objective to be achieved in the best way possible’. (20)


Thus, in so far as the conditions laid down in Article 107(3)(b) TFEU are fulfilled, that is to say, in the present case, that the Member State concerned is indeed confronted with a serious disturbance in its economy and that the aid measures adopted to remedy that disturbance are, first, necessary for that purpose and, secondly, appropriate and proportionate, those measures are presumed to be adopted in the interests of the European Union, so that that provision does not require the Commission to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted <mask>, contrary to what is laid down in Article 107(3)(c) TFEU. In other words, such a balancing exercise would have no raison d’être in the context of Article 107(3)(b) TFEU, as its result is presumed to be positive. Indeed, the fact that a Member State manages to remedy a serious disturbance in its economy can only benefit the European Union in general and the internal market in particular.


3. It is against that background that the referring court asks the Court to clarify certain aspects of the concept of ‘abuse’ within the meaning of Article 102 TFEU, namely: – the constituent elements of abusive conduct, allowing a clear line to be drawn between practices which come within the scope of so-called ‘normal’ <mask>, on the one hand, and those which come within the scope of distorted competition, on the other; – more philosophically, the interests protected by Article 102 TFEU, for the purpose of ascertaining the evidence that must be taken into consideration when assessing whether there is abusive conduct; – the admissibility and the relevance of evidence submitted ex post by the dominant undertakings demonstrating the absence of actual effects of allegedly abusive conduct in order to contest the capacity of that conduct to have restrictive effects on competition; and – the relevance of the intention to restrict competition in the assessment of the abusive nature of particular conduct.


76. In order to decide whether that tax regime conferred an advantage on the coordination centres, the Court of Justice considered it necessary, as it stated in the passage cited by the General Court in paragraph 142 of the judgment under appeal, to compare that tax regime with the ordinary tax system, in which the taxable income of any undertaking carrying on its activities in conditions of free <mask> corresponded to the difference between the income and outgoings of that undertaking. (43) Thus, the Court of Justice had concluded that the effect of excluding staff costs and financial charges – which made a major contribution to enabling the coordination centres to earn revenue – from the expenditure which served to determine the taxable income of those centres was that ‘the transfer prices [did] not resemble those which would [have been] charged in conditions of free competition’. (44)


It follows from the judgments of 15 June 1976, EMI Records (51/75, EU:C:1976:85), of 3 July 1985, Binon (243/83, EU:C:1985:284), and of 30 May 2013, Quinn Barlo and Others v. Commission (C‑70/12 P, not published, EU:C:2013:351), that it is the economic effects of the anticompetitive conduct, and not its legal form, that are relevant for the assessment of its duration. The economic effects of a restriction of <mask> may continue even after the formal termination of a single and continuous infringement, for example, until the end of the period during which the collusive prices were in force.


For the same reasons, the General Court erred in its conclusion that undertakings other than Banedanmark that have obtained licences operate on local sections of the railway network which form a kind of natural monopoly.   In addition, the reasoning in the judgments under appeal concerning operators established in other Member States which are in possession of a licence   and concerning the optional nature of liberalisation of the railway sector   are not pertinent, since the Danish licensing system shows that the market has been liberalised and is open to <mask>.


It submits, by the first part of this ground of appeal, that the condition that the applicant must be directly concerned by the act at issue has to be examined in full within the framework of that third situation and it is not permissible for the EU judicature to rely, for that purpose, on the decision resulting from its examination of one of the other two situations referred to in the fourth paragraph of Article 263 TFEU. It is apparent from the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873) that that condition must be interpreted differently in, respectively, the second and third situations provided for in that provision. So far as concerns proof that the appellant is directly concerned by the act at issue, for the purposes of the third situation – applicable in the case of an aid scheme –that is set out in that provision, the appellant submits that it follows from that judgment that it is for it to prove that the act at issue is actually liable to restrict <mask>. The present case is comparable to the case which gave rise to that judgment and must result in a similar assessment of the condition that the applicant is directly concerned by the act at issue. In that regard, the appellant inter alia set out and proved in what way the two schedules of airport charges at issue discriminated against other airlines, including vis-à-vis Ryanair.


By preventing unequal treatment between entities which, like the entity in question in the main proceedings, produce the electricity they need and those which are supplied by third parties for the purpose of producing energy products, that directive contributes to the achievement of the objectives of Directive 2003/96, since, by making provision for a system of harmonised taxation of energy products and electricity, it seeks, inter alia, as is apparent from recitals 2 to 5 and 24 of that directive, to promote the proper functioning of the internal market in the energy sector by avoiding, in particular, distortions of <mask> (judgment of 27 June 2018, Turbogás, C‑90/17, EU:C:2018:498, paragraph 34 and the case-law cited).


Even assuming that the allocation of that sum to FSE could be understood as having been made for the sole purpose of construction of railway infrastructure, and not for any other purposes, it nevertheless concerns railway infrastructure which is not made available to potential users on equal and non-discriminatory terms, given that FSE has an exclusive right to that use for the duration of its contract concluded with the Apulia Region. Therefore, the fact that FSE is required to keep separate accounts does not affect the conclusion according to which the allocation of the sum of EUR 70 million to that undertaking was capable of distorting <mask>.


In order to answer that question, it is necessary, first, to consider whether the criteria thus envisaged by the referring court are relevant for assessing the restrictive effects of the agreements concerned in the present case. It is then necessary to examine what is meant, in the present case, by the requirement that, for an agreement to be caught by the prohibition by reason of its effects, those effects on <mask> must be appreciable.


The appellants claim that the General Court infringed the obligation to state reasons for its decisions. They argue, first, that it is impossible to understand on what evidence the General Court relied when it found, in paragraph 67 of the judgment under appeal, that Silver Plastics had participated in the alleged anticompetitive meeting of 13 June 2002. At no time, they submit, did the General Court explain why the handwritten notes referred to in paragraph 54 of the judgment under appeal reveal an infringement of EU <mask> law. In addition, in paragraph 63 of the judgment under appeal, the General Court sought to demonstrate only how the arguments put forward by the appellants do not necessarily demonstrate that another meeting – the object of which was not anticompetitive and which was held on the same day and was attended by representatives of Silver Plastics – began at 9.00, and that, consequently, representatives of Silver Plastics could not have participated in the anticompetitive meeting held at the same time. By contrast, the reasons why the General Court concluded that the meeting which did not have an anticompetitive object started later remain unclear. The appellants point out that they do not call into question the General Court’s assessment of the evidence, but criticise it on the ground that it did not actively substantiate its assumptions.


The Commission also points out that the inclusion of activities carried on outside the European Union within the scope of the concept of a ‘VIU’ does not imply that non-EU undertakings become subjects of the rights and obligations arising from EU law and does not broaden the powers of the European Union. According to the Commission, the transmission system operators subject to the rules on effective unbundling are already operating within the European Union. The inclusion of activities carried on outside the European Union in the definition of a ‘VIU’ makes it possible to evaluate the effects of those activities in the European Union. There is no principle of <mask> law or international law that precludes an interpretation of this kind.


It is into that context, which I have only very briefly described, that fall some of the limitations on the contractual freedom of the parties that are at issue in this case, such as the limitation arising from Paramount’s obligation not to include in any new licence agreements clauses which create absolute barriers to intra-EU <mask> and frustrate the objective of establishing the single market, referred to in Article 3(3) TEU, or the principle asserted in the case-law and recalled by the General Court in accordance with which the rules on copyright guarantee only remuneration that is ‘reasonable’ in relation to the economic value of the service provided and clauses which provide for a higher level of remuneration might not be permissible if they are premised on the national partitioning of markets resulting from the absolute territorial protection of national licensees.


In the event that the Court should consider that Paragraph 3(2)(u) of Law XCV of 2009 falls within the scope of Article 34 TFEU, Hungary considers that the measure may be justified by overriding reasons in the public interest, is appropriate for achieving its objective and is proportionate. The principal objective of Paragraph 3(2)(u) of Law XCV of 2009 is to create a level playing field between suppliers by imposing an additional obligation on retailers, who generally have significant market power, thus ensuring effective <mask>. The measure is limited to basic homogeneous foodstuffs and simply requires the retailer not to apply a different profit margin to identical products from different Member States. Moreover, the concept of identical product is narrowly defined. In addition, the measure applies equally to imported and domestic products.


Thus, contrary to the Kingdom of Belgium’s assertions, the power to adopt measures to promote effective <mask> on the electricity and natural gas markets should not lie exclusively with the national competition authorities. As stated in recital 37 of Directive 2009/72 and recital 33 of Directive 2009/73, the regulatory authority must have the power to decide, irrespective of the application of competition rules, on appropriate measures ensuring customer benefits through the promotion of effective competition necessary for the proper functioning of the internal market in electricity and natural gas. As is apparent from the use of the term ‘impose’ in Article 37(4)(b) of Directive 2009/72 and Article 41(4)(b) of Directive 2009/73, that power must permit the adoption of binding measures.


It follows that the facts which gave rise to the judgment of 6 July 1995, AITEC and Others v Commission (T‑447/93 to T‑449/93, EU:T:1995:130) are different from those in the present case. That case-law is therefore not capable of establishing that, in the present case, the Commission was required to weigh the beneficial effects of the aid as regards the achievement of the objectives set out in Article 107(3)(b) TFEU against its adverse effects on trading conditions and the maintenance of undistorted <mask>. The applicant’s argument in that regard must therefore be rejected.


Moreover and in any event, as Advocate General Bobek recently explained in his Opinion in Budapest Bank and Others, the fact that a <mask> authority or a competent court does not have to examine the effects of an agreement if it has been found that that agreement has an anticompetitive object, does not mean that that authority or court cannot at the same time examine whether an agreement has both an anticompetitive object and anticompetitive effects. Similarly, it may also examine only whether an agreement has anticompetitive effects, if it deems that to be necessary and appropriate in the circumstances of the case. However, as Advocate General Bobek also noted, it is for that authority or court to gather the necessary evidence and make the legal categorisation of that evidence for each type of infringement concerned.


In the judgment in that case (judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO (C‑104/18 P, EU:C:2019:724, paragraph 45)), the Court first recalled that EU trade mark rules are aimed at contributing to the system of undistorted <mask> in the European Union. In that system, each undertaking must, in order to attract and retain customers by the quality of its goods or services, be able to have registered as trade marks signs which enable the consumer, without any possibility of confusion, to distinguish those goods or services from others which have a different origin.


In that regard, it is apparent from settled case-law that the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether a prior call for <mask> needs to be issued for the award of a public contract. Conversely, the provisions of a directive are not applicable if the period prescribed for its transposition expired after that date (judgment of 27 November 2019, Tedeschi and Consorzio Stabile Istant Service, C‑402/18, EU:C:2019:1023, paragraph 29 and the case-law cited).


It is for the referring court to examine those claims in order to check whether they are credible enough to warrant closer scrutiny. Should the referring court come to the conclusion that the MIF Agreement could reasonably have had some procompetitive effects and that those positive effects are not clearly outweighed by other, more profound, anticompetitive effects, that agreement cannot be classified as restrictive of <mask> by object. In that case, an infringement of Article 101(1) TFEU can only be established following an analysis of the effects of the agreement.


It is thus evident that the objectives pursued by the national provisions at issue are the same as those present in the regulation. At the hearing, the Lithuanian Government itself admitted as much. The EU legislature devised Article 148 of Regulation No 1308/2013 precisely after having taken into account considerations of the same nature as the ones motivating the adoption by the Lithuanian legislature of the contested provisions of the Law on the prohibition of unfair practices. What was reached is perhaps a different balance between the same values: when seeking to reconcile the objectives of free <mask> with the specific objectives of the common agricultural policy, including the aim to ensure a fair standard of living for farmers in the milk sector reinforcing their bargaining power and protecting them against unfair commercial practices, the EU legislature chose, instead of the perhaps more robust measures adopted by the Lithuanian legislature, to allow merely for the possibility to render it compulsory for Member States to require a written contract.


Those paragraphs of the judgment under appeal form part of an assessment of the documentary evidence of the Commission’s file, by which the General Court, in essence, confirmed the body of evidence adduced by the Commission, in accordance with the case-law on proof of infringements in the field of <mask> law. According to that case-law, that evidence may be provided by the Commission, by means of a body of objective and consistent evidence, which, viewed as a whole, may, in the absence of another plausible explanation, constitute evidence of such an infringement even if one or another piece of that body of evidence is not, in itself, sufficient in this respect (see, to that effect, judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraphs 50 to 52).


Arriva Italia, supported by the Commission, takes the opposite position and submits that that allocation distorts <mask>. The Commission contends that the allocation of EUR 70 million must be used to ensure the continued operation of FSE. It stresses, however, that, should it be considered that that allocation can be used only to finance the railway infrastructure, it would nonetheless be liable to distort competition. In the Commission’s view, this is because, although there is no competition on the market for the operation of that infrastructure and the market for the provision of passenger transport services, there is competition for those markets. It follows that the allocation of EUR 70 million may have distorted competition as it allowed FSE to remain on the market, thereby preventing other players from being entrusted with the two activities mentioned above.


That further assessment presupposes that certain conditions which could also bring the interest of consumers within the national court’s overall assessment are met, namely: (a) the decision of the national <mask> authority should not appear prima facie unlawful for reasons other than those relating to the limitation period and (b) the content of the decision of the national competition authority being challenged must in theory provide a basis for follow-on actions by a substantial number of consumers who have suffered a loss as a result of unlawful conduct on the part of the undertakings penalised.


Furthermore, I would add that the dispute in the main proceedings concerns a rather specific set of circumstances and that the five-year limitation period established by the national legislation appeared, at first glance, to preclude any intervention by the <mask> authority.   The need effectively to enforce Article 101 TFEU cannot justify artificially extending the duration of the infringement, in particular beyond the perpetrators’ intention to infringe, for the purpose of enabling proceedings to be brought. The imperative is all the greater given that, as the Commission highlighted, the duration of the infringement is a factor to which regard is had in fixing the amount of the fine.


104. In that regard, it is clear from the case-law of the Court that, since Article 102 TFEU is aimed not only at practices which may cause prejudice to consumers directly, but also at those which are detrimental to them through their impact on an effective <mask> structure, a competition authority, or, where appropriate, a court, will not have to examine whether the conduct in question has actually caused harm to consumers for the purposes of subparagraph (b) of the second paragraph of Article 102 TFEU, but will have to examine whether the conduct at issue has had a restrictive effect on competition. (85) Indeed, it is normally the potentially harmful nature of the conduct that is taken into account in order to establish an abuse of a dominant position, without it being necessary to show any concrete effect, in particular in relation to consumers. (86)


As provided for in Decision ADM-16-60 of 23 November 2016, on the appointment of members of the selection board for the <mask>, as last amended by Decision ADM-16-60-Rev4 of 19 September 2017 on the appointment of members of the selection board for the competition, EUIPO set up a selection board consisting of a chairperson, a vice-chairperson, eight full members and three alternate members. The chairperson, the vice-chairperson, the eight full members and two of the three alternate members were agents of EUIPO and the third alternate member was an agent of the European Commission.


78. The appellants – supported by the interveners – contend, in particular, that the General Court erred in law in concluding, in paragraphs 101 and 102 of the judgment under appeal, that the mere possibility that the parties to the manipulation would offer better conditions than their competitors (due to the informational asymmetry concerning the Euribor levels) reveals a sufficient degree of harm to <mask> that gave rise to an infringement ‘by object’. The General Court should have censured the Commission for failing to consider the key issue of whether knowledge of the manipulation on 19 March 2007 gave traders the incentive to offer more competitive rates than their competitors. In that regard, HSBC submitted, before the General Court, an expert report according to which the participating traders did not have the incentive to offer more competitive rates because to do so would have reduced their profits. The General Court’s finding, in paragraph 101 of the judgment under appeal, that this report ‘contained only general assertions’ is, according to the appellants, a manifest distortion of that evidence.


Judgments of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 338), and of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 97). For the sake of completeness, I should specify that the relevance of the third condition mentioned in point 95 above, namely the unity of the legal interest protected, has been questioned. According to case-law, EU <mask> rules and national competition rules pursue ‘different ends’ (see judgment of 13 February 1969, Wilhelm and Others, 14/68, EU:C:1969:4, paragraph 11) and they protect, therefore, different legal interests. It follows that the principle ne bis in idem does not preclude that separate fines are imposed on the same undertaking for the infringement of, on the one side, EU competition rules, and, on the other side, national competition rules. However, the relevance of the condition that the legal interest protected must be the same is disputed since, first, that condition is not applied in areas of EU law other than competition law (see Opinions of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, point 116, and of Advocate General Campos Sánchez-Bordona in Menci, C‑524/15, EU:C:2017:667, point 27), and, second, it is at odds with the increasing convergence of EU and national competition rules and with the decentralisation for the application of EU competition rules brought about by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in [Articles 101 and 102 TFEU] (OJ 2003 L 1, p. 1) (see Opinion of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, points 121 to 123; Opinion of Advocate General Wahl in Powszechny Zakład Ubezpieczeń na Życie, C‑617/17, EU:C:2018:976, point 48; and Veenbrink, M., ‘Bringing Back Unity: Modernizing the Application of the Non Bis in Idem Principle’, World Competition, 2019, Volume 42, Issue 1, pp. 67 to 86). That question, however, does not arise in the present case, for the reason set out in point 101 below.


Since Femern Landanlæg is not capable of carrying out the activities of constructing or maintaining the rail connections itself, the General Court was right to find, in paragraph 126 of the first judgment under appeal and in paragraph 101 of the second judgment under appeal, that the existence of companies carrying out those activities on the Danish railway network, including following a competitive tendering procedure for the award of a contract, does not demonstrate that the activities of managing or operating the railway infrastructure performed by Femern Landanlæg in that sector are also open to <mask>.


It should be noted that, according to settled case-law, classification of a measure as ‘State aid’, for the purposes of Article 107(1) TFEU, requires all of the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort <mask> (see judgment of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 18 and the case-law cited).


By analogy, in the context of an action for damages for abuse of a dominant position in which a buyer takes issue with his or her supplier for imposing unfair selling prices (see point (a) of the second paragraph of Article 102 TFEU), it may be necessary, in order to establish that that conduct actually occurred, to determine what is said in the contract. Where the parties disagree as to the exact prices specified in the contract – for example because the prices are based on a complex calculation formula, because they take different variables into account, etc. – the clauses in the contract relating to prices may have to be interpreted by the court. Here too, however, it will be a matter of a simple preliminary issue, seeking to establish the reality of the conduct complained of, in order to allow the court to resolve the main issue of the legality of the conduct in the light of <mask> law.


‘3. In the cases referred to in paragraphs 1 and 2 of this article, the contracting authority may not disclose information the disclosure of which would infringe the rules on the provision of information and protection of data or otherwise be contrary to the general interest, would prejudice the legitimate commercial interests of a particular supplier or would adversely affect <mask> between suppliers.’


In the light of all the foregoing considerations, the answer to the first question is that the first sentence of Article 11(6) of Regulation No 1/2003 must be interpreted as meaning that the <mask> authorities of the Member States are relieved of their competence to apply Articles 101 and 102 TFEU in the case where the Commission initiates proceedings for the purposes of adopting a decision finding an infringement of those provisions in so far as that formal act relates to the same alleged infringements of Articles 101 and 102 TFEU, committed by the same undertaking or undertakings on the same product market or markets and the same geographical market or markets during the same period or periods as those concerned by the proceeding or proceedings previously brought by those authorities.


In that regard, the Court has previously held that it cannot be said that Article 13(1) of Regulation No 1/2003, which allows a <mask> authority to suspend or close a case on the ground that another authority is dealing with the same case or has dealt with it, and recital 18, from which it is apparent that ‘the objective [is] that each case should be handled by a single authority’, establish a criterion for allocating or dividing up cases or competencies between the Commission and the national authority or authorities that may have an interest in the case in question (see, to that effect, judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 38).


It may be inferred from the foregoing that the EU legislature complied with the requirements of the principle of proportionality, without manifestly exceeding its broad discretion in a technical and complex field such as that in question here, when it opted for a measure (to introduce the concept of remuneration) capable of attaining the objectives pursued. That measure itself makes it easier to improve protection for posted workers and to guarantee fair <mask> between local undertakings and those that post their workers.


However, both the interim injunction and the legal undertaking not to enter the market at issue in the main proceedings were to last for only a few months until the outcome of the respective disputes. Therefore, even though GUK and Alpharma were temporarily prevented from entering the market with generic paroxetine while those measures were in force, that does not establish that there was no longer potential <mask> between those generic manufacturers and GSK.


Consequently, it seems to me that the Authorisation Directive does not preclude charges or fees other than those provided for by Articles 12 and 13 thereof being imposed for the provision of electronic communications networks and services, subject, however, to the condition that such charges or fees do not undermine the effectiveness of that directive, that is, that they do not create obstacles to the freedom to provide electronic communications networks and services or to the promotion of <mask> in the provision of such networks and services.


Finally, the existence of interim injunctions or legal undertakings, such as those in the present case, temporarily prohibiting the generic manufacturers from entering the market pending the outcome of legal proceedings regarding the patent’s validity or whether the generic product infringed it,   cannot cast doubt on the existence of potential <mask> between the holder of a patent for a medicinal product and a generic manufacturer wishing to enter the market with a generic version of that medicinal product.


(Reference for a preliminary ruling – <mask> – Directive 93/13/EEC – Unfair terms in consumer contracts – Mortgage loan agreements denominated in a foreign currency (Swiss francs) – Limitation – Article 4(2) – Main subject matter of the contract – Terms exposing the borrower to a foreign exchange risk – Requirements of intelligibility and transparency – Burden of proof – Article 3(1) – Significant imbalance – Article 5 – Contractual term that is in plain, intelligible language – Principle of effectiveness)


It should be stated at the outset that the fact that the Belgian authorities have produced consumer complaints as evidence does not mean that they have put themselves in a position which differs from that of a person governed by private law in analogous proceedings. While a <mask> association may be a private law body not exercising public powers, it can gather such complaints and use them in proceedings against businesses.


By orders of 28 January 2018, the Verwaltungsgericht München (Administrative Court, Munich), upon application of Deutsche Umwelthilfe, required payment by the Land of Bavaria of a financial penalty in the sum of EUR 4000 because it had failed to comply with a point of the operative part of the order of 27 February 2017, and threatened to impose upon it an additional financial penalty of the same amount if it did not comply, within a fresh period, with another point of the operative part of that order. On the other hand, that court dismissed, in particular, the application for coercive detention of the Minister for the Environment and <mask> of the Land of Bavaria or, failing this, of its Minister-President. The Land of Bavaria appealed against the orders of 28 January 2018 to the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria), which dismissed the appeals by order of 14 August 2018.


Finally, the referring court takes the view that, in order to comply with the principle of effectiveness of EU law, it would be possible for the Slovenian courts to adopt a less strict interpretation of the principle of legal formality referred to in paragraph 28 above, by allowing a court before which an application for enforcement has been brought to determine of its own motion whether a term is unfair at that procedural stage. During that stage, the court is required to make a complete finding in respect of all the legally determining facts, including those on which the parties do not agree. In addition, the notarial instrument is better suited to determining the substance of the case than classic enforceable instruments issued by courts. In addition, Article 4 of the Law on notaries provides that the debtor must expressly accept that the instrument is directly enforceable, which precludes the possibility that public policy provisions such as <mask> provisions relating to unfair terms could be circumvented by obtaining the debtor’s agreement. On the basis of such an interpretation, a court before which an application for enforcement had been brought would therefore be able to refuse of its own motion enforcement of a notarial instrument, such as the notarial instrument at issue, which was accepted by the debtor in breach of public policy provisions.


(Reference for a preliminary ruling – <mask> – Credit agreements for consumers relating to residential immovable property – Payment or savings account – Obligation for the borrower to deposit his or her income in a payment account during a period fixed by the loan agreement – Individual advantage – Directive 2007/64/EC – Article 45(2) – Directive (EU) 2015/2366 – Article 55(2) – Directive 2014/17/EU – Article 4(26) and (27) – Tying practice – Bundling practice – Article 12(1) – Article 12(2)(a) – Article 12(3) – Directive 2014/92/EU)


51 <mask> can be assured only if account is taken of his actual and therefore current interests, and not his interests in the circumstances existing when the contract at issue was concluded, as the Advocate General also observed, in essence, in points 62 and 63 of his Opinion. Similarly, the consequences against which those interests must be protected are those which would actually occur, in the circumstances existing or foreseeable at the time when the dispute arose, if the court were to annul that contract, and not those which would result from the annulment of the contract on the date of its conclusion.


47 In the light of those considerations, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Do the rules in Chapter VIII, in particular in Article 80(1) and (2) and Article 84(1), of [the GDPR] preclude national rules which – alongside the powers of intervention of the supervisory authorities responsible for monitoring and enforcing the Regulation and the options for legal redress for data subjects – empower, on the one hand, competitors and, on the other, associations, entities and chambers entitled under national law, to bring proceedings for breaches of [the GDPR], independently of the infringement of specific rights of individual data subjects and without being mandated to do so by a data subject, against [the person responsible for that infringement] before the civil courts on the basis of the prohibition of unfair commercial practices or breach of a <mask> law or the prohibition of the use of invalid general terms and conditions?’ Consideration of the question referred


By order of 13 September 2016, the Oberlandesgericht Wien (Higher Regional Court, Austria), before which an appeal was brought, overturned that judgment and referred the case back to the court of first instance for further findings of fact and a new decision to be made. It took the view that, whilst the validity of the choice-of-law clause should be considered according to German law, a clause in general terms and conditions of business is also unfair under that law if it misleads the consumer by giving him the impression that only German law applies to the contract, without informing him that under the Rome I Regulation and the Rome Convention he enjoys legal protection in the form of the mandatory provisions of the law of the country in which he has his habitual residence, namely Austrian law. The court of appeal stated that, even if the choice-of-law clause were valid under German law, in principle, it would have been necessary to consider the other terms of the contract in the light of that law. It held that it would also have been necessary to consider whether mandatory <mask> provisions of Austrian law would have precluded the application of German law when assessing the validity of the clauses at issue.


98. In the third place, the essential role of <mask> is apparent from the fact that, while Article 102 TFEU does not provide for an equivalent derogation to that laid down in Article 101(3) TFEU, the Court has established that gains in efficiency can also counteract the harmfulness of abusive conduct, where benefits are passed on to the consumer. Indeed, it is open to a dominant undertaking to provide justification for behaviour that is liable to be caught by the prohibition under Article 102 TFEU by demonstrating, inter alia, that ‘the exclusionary effect produced may be counterbalanced, outweighed even, by advantages in terms of efficiency that also benefit consumers’. (82)


Thus, in accordance with Article 1 thereof, that directive establishes common rules for the generation, transmission, distribution and supply of electricity, together with <mask> provisions, with a view to improving and integrating competitive electricity markets in the European Union. That directive lays down the rules relating to the organisation and functioning of the electricity sector, open access to the market, the criteria and procedures applicable to calls for tenders and the granting of authorisations and the operation of systems. It also lays down universal service obligations and the rights of electricity consumers and clarifies competition requirements.


Agrimotion lodged an appeal against that decision before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), claiming that, in accordance with the legal position expressed by the competent German authority, namely the Bundesamt für Verbraucherschutz und Lebensmittelsicherheit (Federal Office for <mask> and Food Safety, Germany), and with the practice followed in other Member States, it can rely on the parallel trade permit granted to Bernbeck, since the name of the latter undertaking appears on the new label attached to the plant protection products.


… Equivalent operating conditions should be guaranteed to … players on the market, facilitating new means of payment to reach a broader market and ensuring a high level of <mask> in the use of these payment services across the whole of the Union. This should generate efficiencies in the payment system as a whole and lead to more choice and more transparency of payment services while strengthening the trust of consumers in a harmonised payments market.


‘This Directive establishes common rules for the generation, transmission, distribution and supply of electricity, together with <mask> provisions, with a view to improving and integrating competitive electricity markets in the Community. It lays down the rules relating to the organisation and functioning of the electricity sector, open access to the market, the criteria and procedures applicable to calls for tenders and the granting of authorisations and the operation of systems. It also lays down universal service obligations and the rights of electricity consumers and clarifies competition requirements.’


New rules should be established to close the regulatory gaps while at the same time providing more legal clarity and ensuring consistent application of the legislative framework across the Union. Equivalent operating conditions should be guaranteed, to existing and new players on the market, enabling new means of payment to reach a broader market, and ensuring a high level of <mask> in the use of those payment services across the Union as a whole. …


Regarding the main proceedings, as all parties confirmed at the oral hearing and as, indeed, the referring court has also stated, Hungary has revised its Civil Code so as to avail of the option contained in Article 8 of the 1993 Directive to provide for higher standards of <mask> than that required by the terms of the directive itself. However, since Hungary was not required to take such step, it must be found that the obligation imposed on its national courts to declare contractual clauses covered by point 1(q) of the Annex automatically void, is a matter of national law and not of EU law.


By order of 18 October 2017, the Sąd Rejonowy w Nowym Tomyślu (District Court, Nowy Tomyśl) declared of its own motion that it did not have jurisdiction and referred the case to the district court within whose territorial jurisdiction the defendant is resident. The former court found that, since the case concerned a contract between a seller or supplier and a consumer, not only was national law to be applied, but also EU law on <mask>, inter alia, Article 6(1) of Directive 93/13, as well as the case-law of the Court of Justice, specifically the judgment of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350), which states that a national court has an obligation to examine of its own motion unfair terms used in contracts concluded between sellers or suppliers and consumers, particularly in relation to jurisdiction.


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 free movement of goods 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 <mask> 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.’


As regards the reason set out in the contested measures relating to his status as founding partner of Fly Aman, it is apparent from the evidence from the websites ‘Aliqtisadi’, ‘Eqtsad News’ and ‘7al.net’ that the applicant is a founding partner of Fly Aman. In addition, the website ‘7al.net’ states that the Syrian Ministry of Trade and <mask> has ratified the articles of association of Fly Aman, 10% of which belong to the applicant.


In order to ensure broad public support for SEPA, a high level of protection for payers is essential, particularly for direct debit transactions. The current and only pan-European direct debit scheme for consumers developed by the [European Payments Council (EPC)] provides for a “no-questions-asked”, unconditional refund right for authorised payments during a period of 8 weeks from the date on which the funds were debited, while that refund right is subject to several conditions under Articles 62 and 63 of Directive 2007/64/EC [of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1)]. In the light of the prevailing market situation and of the necessity to ensure a high level of <mask>, the impact of those provisions should be assessed in the report that, in accordance with Article 87 of Directive 2007/64/EC, the Commission shall, no later than 1 November 2012, present to the European Parliament, the Council, the European Economic and Social Committee and the [European Central Bank] accompanied, where appropriate, by a proposal for its revision.’


Admittedly, as noted by the referring court and VKI, recital 63 of that directive states that ‘in order to ensure a high level of <mask>, Member States should, in the interests of the consumer, be able to maintain or introduce restrictions or prohibitions on unilateral changes in the conditions of a framework contract, for instance if there is no justified reason for such a change’.


In the light of the foregoing considerations, the answer to the fourth question is that Article 3 and Article 8 of Directive 93/13, read in conjunction with Article 6 and Article 7 of that directive, must be interpreted as meaning that, in the context of the examination of its own motion of the possible unfairness of the terms in a contract concluded between a seller or supplier and a consumer, which the national court carries out in order to determine whether there is a significant imbalance in the parties’ obligations under that contract, that court may also take into account national provisions ensuring a higher level of <mask> than that provided for by that directive.


By orders of 29 January 2018, the same court, again on the application of Deutsche Umwelthilfe, declared that another of the penalties contemplated by the order of 27 February 2017 had become payable, and imposed a further suspended financial penalty on the Land of Bavaria, in the amount of EUR 4000. By contrast, that court dismissed, inter alia, an application for the committal to prison of the then Minister for the Environment and for <mask> of the Land of Bavaria or, failing that, the Minister-President of the Land. Deutsche Umwelthilfe appealed to the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria) against that decision.


It should be noted, in particular, that that joint position, the stated aim of which is to foster <mask> and ensure the stability, effectiveness and integrity of the financial markets, expressly provides that the EBA will use the principles that that joint position lays down in order to develop more detailed requirements for the governance and oversight of banking products.


45 In the second place, it should be noted that one of the objectives of Regulation No 1169/2011 is, as is apparent from a combined reading of Article 1(1) and Article 3(1), to ensure a high level of <mask> in relation to food information, taking into account the differences in the perception of consumers, by providing a basis for them to make informed choices (see, to that effect, judgment of 13 January 2022, Tesco Stores ČR, C‑881/19, EU:C:2022:15, paragraphs 43 and 44 and the case-law cited).


The convergence of the telecommunications, media and information technology sectors means all transmission networks and services should be covered by a single regulatory framework. … It is necessary to separate the regulation of transmission from the regulation of content. This framework does not therefore cover the content of services delivered over electronic communications networks using electronic communications services, such as broadcasting content, financial services and certain information society services, and is therefore without prejudice to measures taken at [EU] or national level in respect of such services, in compliance with [EU] law, in order to promote cultural and linguistic diversity and to ensure the defence of media pluralism. … The separation between the regulation of transmission and the regulation of content does not prejudice the taking into account of the links existing between them, in particular in order to guarantee media pluralism, cultural diversity and <mask>.


However, the Directive does not merely pursue a high level of <mask>. The text also aims at maintaining a certain balance between the obligations of the various parties. On the one hand, the Directive determines obligations of sellers in case of nonconforming consumer goods. On the other hand, the Directive lays down obligations which consumers must fulfil in order not to forfeit their rights.


7. Member States shall take appropriate measures to protect final customers, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers. … They shall ensure high levels of <mask>, particularly with respect to transparency regarding contractual terms and conditions, general information and dispute settlement mechanisms. … As regards at least household customers those measures shall include those set out in Annex I.


Energy regulators should have the power to issue binding decisions in relation to electricity undertakings and to impose effective, proportionate and dissuasive penalties on electricity undertakings which fail to comply with their obligations or to propose that a competent court impose such penalties on them … Energy regulators should also be granted the power to contribute to ensuring high standards of universal and public service in compliance with market opening, to the protection of vulnerable customers, and to the full effectiveness of <mask> measures. …


The Court based its reasoning, quite clearly, on the fact that the national legislation at issue was inconsistent. It does indeed seem unreasonable to suggest that whilst the objective of <mask> and the proper administration of justice does not preclude a litigant from appearing in person, he or she should nonetheless be precluded from procuring the services of a lawyer who has been admitted to practise in another Member State and is subject to all the ethical requirements connected with that professional status.


With respect to the principle of legal certainty and legitimate expectations, GRDF argues, inter alia, that the principle of non-retroactivity of administrative decisions applies when Member State authorities take administrative decisions that fall within the scope of EU law.   The principle of legal certainty and legitimate expectations requires rules to be clear and precise,   and their application foreseeable, and retroactive remedies are inconsistent with this or <mask>.


In that regard, the Court has held that Article 4(2) of Directive 93/13 lays down an exception to the mechanism for reviewing the substance of unfair terms, such as that provided for in the system of <mask> put in place by that directive, and that that provision must therefore be strictly interpreted (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 34 and the case-law cited).


Fourthly, the referring court asks, in essence, whether a payment service provider wishing to rely on the derogation provided for in Article 63(1)(a) of Directive 2015/2366 is required to prove that, having regard to the latest available scientific knowledge, the payment instrument cannot be blocked or that its continued use cannot be prevented. That court states that it is in favour of an affirmative answer, with a view to <mask> and taking account of the fact that that service provider is responsible for security measures according to recital 91 of Directive 2015/2366. It notes that, in the present case, DenizBank has not disputed VKI’s claim that blocking a card in such a manner is technically feasible.


4 Article 1 of that directive reads: ‘1. The purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a uniform minimum level of <mask> in the context of the internal market. 2. For the purpose of this Directive: … (e) guarantee: shall mean any undertaking by a seller or producer to the consumer, given without extra charge, to reimburse the price paid or to replace, repair or handle consumer goods in any way if they do not meet the specifications set out in the guarantee statement or in the relevant advertising; …’


The referring court has doubts as to the interpretation of Regulation No 1896/2006 in the light of <mask> and the case-law of the Court. In its view, a European order for payment issued without the possible existence of unfair terms having been verified may undermine the requirement of consumer protection enshrined in Article 38 of the Charter, read in conjunction with Article 6(1) TEU.


36. In the light of those considerations, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Do the rules in Chapter VIII, in particular in Article 80(1) and (2) and Article 84(1), of Regulation (EU) 2016/679 preclude national rules which – alongside the powers of intervention of the supervisory authorities responsible for monitoring and enforcing the Regulation and the options for legal redress for data subjects – empower, on the one hand, competitors and, on the other, associations, entities and chambers entitled under national law, to bring proceedings for breaches of Regulation (EU) 2016/679, independently of the infringement of specific rights of individual data subjects and without being mandated to do so by a data subject, against the infringer before the civil courts on the basis of the prohibition of unfair commercial practices or breach of a <mask> law or the prohibition of the use of invalid general terms and conditions?’


19 In that context, it submits that the <mask> Authority could not merely establish that the products at issue could be confused with food products, but also had to demonstrate the danger posed by such confusion. It claims, to that end, that the Consumer Protection Authority had to carry out laboratory analyses and tests in order to determine whether the products at issue could be broken and whether they pose a danger of poisoning when placed in the mouth, sucked or swallowed.


As regards the interest in bringing proceedings and, therefore, the procedural issues which depend on the interest pursuant to which an action is brought, such as locus standi or admissibility of the action, the legal position of a public authority is thus comparable to that of a <mask> association. Such an association can also bring a cessation action in the absence of any interest of its own.


As regards the applicant’s argument that Sabra Maritime Agency’s licence was cancelled following its nationalisation, that company having subsequently become dormant and finally been removed from the commercial register, it should be noted that the applicant produced a letter from the Director of Internal Trade and <mask> of Tartus of 28 September 2020 stating that certain company names do not appear in the commercial register of Tartus. These are, in particular, the following company names: Sabra Group, Sabra Maritime Agency and Yass Marine.


32 The referring court, recalling the Court’s case-law governing the procedural autonomy of the Member States in order to ensure the full effectiveness of the substantive law of the European Union, that on the duties of the national courts in the area of <mask> and the case-law on the obligation to override the force of res judicata in certain circumstances, is uncertain, in the dispute before it, as to whether the terms in the guarantee contracts, at issue in the main proceedings, concluded between ZW and BDB and between ZW and the other creditors, on the basis of which the orders for payment were issued, were unfair.


In those circumstances, the referring court has doubts as to whether a national provision such as Article 339(2) of the Code of Civil Procedure is consistent with the standard of <mask> required by Directive 93/13/EEC, in particular, as regards the court’s obligation to examine of its own motion whether terms of a contract concluded with a consumer are unfair.


Directive 93/13 has already generated much case-law, both in this Court and in the national courts. While that directive has clearly augmented a regime of <mask> in that it allows courts to declare that contractual terms which have been drawn up for general use by the supplier or producer to be unfair (and, hence, unenforceable), Article 4(2) of that directive provides, however, for two important exceptions to this regime, namely, where the allegedly unfair term relates either to the definition of the main subject matter of the contract or, the adequacy of the price or remuneration in respect of the goods and services. The scope of those exceptions is at the heart of these preliminary references, with one of the principal questions (in Case C‑84/19) being whether non-interest charges paid by a bank customer in respect of a loan agreement fall within the scope of either of those exceptions.


27 Under Paragraph 2 of the Gesetz über Unterlassungsklagen bei Verbraucherrechts- und anderen Verstößen (Unterlassungsklagengesetz – UKlaG) (Law on injunctions against infringements of consumer law and other infringements) of 26 November 2001 (BGBl. 2001 I, p. 3138), in the version applicable to the dispute in the main proceedings (‘the Law on Injunctions’): ‘(1) Any person who infringes rules in place to protect consumers (consumer protection laws), other than in the application or recommendation of general terms and conditions, may be subject to an order to cease and desist or a prohibition order in the interest of <mask>. … (2) For the purposes of this provision, “consumer protection laws” means, in particular: … 11. the rules defining lawfulness (a) of the collection of personal data of a consumer by an undertaking or (b) the processing or use of personal data which have been collected by a business in relation to a consumer, where the data are collected, processed or used for the purposes of publicity, market and opinion research, use by an information agency, a personality and usage profile establishment, of any other data business or for similar commercial purposes.’


The request has been made in proceedings between Natumi GmbH and Land Nordrhein-Westfalen (Land of North Rhine-Westphalia, Germany), represented by the Landesamt für Natur, Umwelt und Verbraucherschutz Nordrhein-Westfalen (Nature, Environment and <mask> Agency of North Rhine-Westphalia, Germany), concerning the contested use of a non-organic product, specifically the alga lithotamn (Lithothamnium calcareum), in processing food and the use of indications referring to the organic production method and to the presence of calcium in the labelling of the processed food in question.


On the contrary, the effective exercise of the rights conferred by Directive 93/13 may be ensured where the seller or supplier is, in principle, required to prove to the court that its pre-contractual and contractual obligations, relating in particular to the requirement of transparency of contractual terms, as resulting in particular from Article 4(2) of Directive 93/13, have been fulfilled. <mask> may thus be ensured, without disproportionately interfering with the right of the seller or supplier to a fair trial (see, by analogy, judgment of 18 December 2014, CA Consumer Finance, C‑449/13, EU:C:2014:2464, paragraph 28).


Finally, as regards the objectives pursued by Directive 2009/72, it should be noted that it follows from recitals 37, 42, 51 and 54 of that directive as well as from Article 1 thereof that it aims to grant energy regulators the power to ensure the full effectiveness of <mask> measures, to ensure that all Union industry and commerce and all citizens of the Union enjoy high levels of consumer protection and have access to dispute settlement mechanisms, to put consumer interests at the heart of the directive, to have that regulatory authorities, where the Member State confers on them that competence, enforce the consumer rights of electricity consumers as well as to implement effective means of dispute settlement for all consumers.


Consumer interests should be at the heart of this Directive and quality of service should be a central responsibility of electricity undertakings. Existing rights of consumers need to be strengthened and guaranteed, and should include greater transparency. <mask> should ensure that all consumers in the wider remit of the [European Union] benefit from a competitive market. Consumer rights should be enforced by Member States or, where a Member State has so provided, the regulatory authorities.


As I have stated in point 29 of this Opinion, the action brought by the applicant in the main proceedings is, in principle, subject to the objective limitation period of three years. That period appears to have already expired in the present case. In order for that action not to be time-barred, that period would have to be regarded as unenforceable against the applicant in the main proceedings. Such unenforceability may be the consequence of the non-compliance of that period with EU law. In that context, the referring court states that, as opposed to the limitation period of 10 years by means of which Slovak courts ensure <mask> in accordance with the case-law stemming from the judgment in Gutiérrez Naranjo and Others,   the three-year period is disadvantageous to the consumer and restricts his rights, sometimes even depriving him of those rights. The referring court thus appears to consider that the objective limitation period of three years may render it impossible in practice to exercise the rights conferred on consumers by EU law or that, at the very least, that period creates a non-negligible risk of a consumer being deterred from properly defending his rights before the court before which proceedings have been brought by the seller or supplier.


However, the Court has previously held that <mask> is not absolute (judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 68) and that, in the interests of legal certainty it is compatible with EU law to lay down reasonable time limits for bringing proceedings (judgments of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 41, and of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 69).


Within the European Parliament, the Committee on the Environment, Public Health and <mask> delivered an opinion   in accordance with which the directive had to make reference to the four main sources of external costs from transport described in the Green Paper, namely congestion, air pollution, noise and accidents. However, the Parliament did not follow that opinion and even proposed to delete any provision seeking to include external costs as it awaited further guidance on that subject.


The fact that Member States may make actions for restitution subject to limitation periods does not mean that their freedom of action in that regard is unlimited. The limitation rules must comply with the requirements of the principle of effectiveness. The case-law of the Court provides several clarifications regarding compliance with that principle as regards the limitation periods for actions relating to <mask>. Having recently had the opportunity to analyse that case-law in a context similar to that of the present case,   I shall confine myself to giving a summary of the conclusions which may be drawn from it.


86. The interest of professionals seems to me to be less important, however, in a case such as that at issue in the main proceedings, since the standards at issue relate to areas, more specifically those of health and <mask>, where, as I emphasised in point 31 of this Opinion, citizens are much more likely to seek to enforce their rights. In that case, the EU institutions must, in my view, take very particular care to ensure that citizens have as wide an access as possible to the content of those standards.


In the light of the full harmonisation achieved by Directive 2008/48 in certain areas of consumer credit, the Member States cannot include new categories of costs which are not compatible with the areas harmonised by that directive. By the method of calculating the maximum amount of the ‘total cost of the contract excluding interest’, the Polish legislature allowed creditors to impose on consumers financial charges higher than those provided for in Article 3(g) of that directive. That legislation is therefore liable to undermine <mask>, contrary to the intentions of the national legislature.


83 In the light of all the foregoing considerations, the answer to the question referred is that Article 80(2) of the GDPR must be interpreted as not precluding national legislation which allows a <mask> association to bring legal proceedings, in the absence of a mandate conferred on it for that purpose and independently of the infringement of specific rights of the data subjects, against the person allegedly responsible for an infringement of the laws protecting personal data, on the basis of the infringement of the prohibition of unfair commercial practices, a breach of a consumer protection law or the prohibition of the use of invalid general terms and conditions, where the data processing concerned is liable to affect the rights that identified or identifiable natural persons derive from that regulation. Costs


‘Must the provisions of [Directive 93/93], in particular Article 3(1) of that directive, and the principles of EU law concerning <mask> and the balance between contracting parties be interpreted as precluding the introduction into national law of the concept of “maximum non-interest credit costs” and the mathematical formula for calculating those costs set out in Article 5(1)(6)(a), in conjunction with Article 36a, of [the Law on Consumer Credit], which allow the costs of the business activity of a seller or supplier to be included in the costs related to a credit agreement that are to be borne by the consumer (the total costs of the credit)?’


The obligation to provide prior information plays a central role in the general scheme of the directive. As the Court has previously held with regard to <mask> in the context of contracts negotiated away from business premises, it is the prerequisite for making the consumer, as the weaker party, fully aware of his rights. The obligation to provide information thus acts as an essential guarantee of the effective exercise of the consumer’s rights, including his right to withdraw, and for that reason is necessary in order to ensure the effectiveness of the European Union’s consumer protection legislation.


In that regard, it acknowledges that Article 3(8) of Directive 2009/72 and Article 3(4) of Directive 2009/73 enable Member States to adopt <mask> measures, particularly with a view to combating energy poverty. It submits however that this is subject to the proviso that such measures do not impede the proper functioning of the market, which, amongst other things, requires compliance with the ‘guiding principle for network access pricing’.


(Reference for a preliminary ruling — <mask> — Directive 93/13/EEC — Unfair terms in consumer contracts — Foreign currency loans — Term on exchange rate — Article 1(2) — Term reflecting a general principle established by law — Article 6(1) — Legal consequences — Removal of unfair term — Contract incapable of continuing in existence without unfair term — Powers of national court)


Furthermore, the Court has recognised that <mask> is not absolute and that Union law does not require a national court to disapply domestic procedural rules conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision, regardless of its nature, contained in Directive 93/13.   Indeed, the Court has emphasised the importance, both for the Union legal order and the national legal systems, of the principle of res judicata, and that, in order to ensure stability of the law and legal relations as well as the sound administration of justice, judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided to exercise those rights can no longer be called into question.