In that regard, recital 60 of Directive 2009/28 sets out the function of guaranteed access, the effects to which its implementation leads and the objective pursued. According to that recital, the function of guaranteed access is to ensure that ‘all electricity sold and supported obtains access to the grid’. Having regard to its function, the implementation of guaranteed access necessarily has the effect of ‘allowing the use of a maximum amount of electricity from renewable energy sources from installations connected to the grid’. Finally, the objective pursued by the EU legislature consisted in ‘integrating renewable energy sources into the <mask> in electricity’ and developing further the priority dispatching granted to generating installations which use renewable energy sources.


Do the “polluter pays” principle in Article 191(2) [TFEU], the principles of equality and non-discrimination in Articles 20 and 21 of the [Charter], and Articles 3 and 5 of Directive [2005/89], in so far as they seek to ensure “the proper functioning of the <mask> for electricity” and call on Member States to ensure “that any measures adopted in accordance with this Directive are non-discriminatory and do not place an unreasonable burden on the market actors”, preclude a provision in national legislation that requires all electricity companies (other than generators of hydroelectricity, which is classified as renewable energy) to fund the tariff deficit, but which imposes a particularly heavy tax burden on nuclear generators, which are required to contribute more than other actors in the energy market, some of which are more polluting, but that do not have to pay these charges, the reasons given being grounds of environmental protection in view of the risks and uncertainties inherent in nuclear activities, without specifying the costs involved or stipulating that the revenue raised is to be used for environmental protection purposes (and given that waste management and storage are already covered by other levies, and nuclear generation companies assume civil liability), and that distorts the free competition required by the liberalised internal market by favouring other electricity generators that do not have to pay environmental taxes even when their sources of production are more highly polluting?


On 20 June 2020, the applicants sent the Commission the complaint form relating to unlawful State aid, as referred to in Article 24(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9). In that form, the applicants stated that the aid schemes resulting from pricing orders 2006, 1/2010 and 8/2010 had been implemented even though the Commission had never ruled on their compatibility with the <mask> and that the absence of a Commission decision created what they claim is a legal vacuum detrimental to all French producers of electricity from photovoltaic energy sources, in so far as the income from contracts concluded at the price laid down by those pricing orders could be called into question and be subject to recovery measures. According to the information provided by the applicants in that form, the support mechanisms for electricity production from photovoltaic energy sources resulting from pricing orders 2006, 1/2010 and 8/2010 are compatible with the internal market. In reliance upon Article 108(1) TFEU and Article 12(1) of Regulation 2015/1589, the applicants, in that form, and more specifically in points 3.4, 8 and 9.3 thereof, ‘[asked] the Commission to make an express finding as to the compatibility of the aid schemes resulting from [those] orders’.


In other words, whether or not an activity is regarded as economic has a major consequence, in that it is precisely that assessment that determines whether the competition rules laid down by the Treaty are applicable to the factual situation under consideration. Thus, whenever the Court has to make such an assessment, it is inevitably — as Advocate General Maduro explained in his Opinion in FENIN v Commission   — entering ‘dangerous territory’, since it is being asked to find a balance between protection of undistorted competition on the <mask> and respect for the powers of the Member States.


In the light of the foregoing items of legislation and case-law, it is understandable that the Court should have had no hesitation in classifying media pluralism as an overriding reason in the public interest,   the protection of which may justify the adoption of national measures that restrict freedom of establishment (and other <mask> freedoms).   It has also pointed out its importance in a democratic society.


OJ 2003 L 176, p. 57, and corrigendum OJ 2004 L 16, p. 74. In its judgment of 19 March 2015, E.ON Földgáz Trade (C‑510/13, EU:C:2015:189, paragraphs 30 to 35), the Court held that Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the <mask> in natural gas and repealing Directive 2003/55 (OJ 2009 L 211, p. 94) was not applicable ratione temporis, so it did not have the opportunity to interpret Article 41(17) of that directive, which is identical to Article 37(17) of Directive 2009/72.


It is necessary to specify the criteria according to which tariffs for access to the network are determined, in order to ensure that they fully comply with the principle of non-discrimination and the needs of a well-functioning <mask> and take fully into account the need for system integrity and reflect the actual costs incurred, in so far as such costs correspond to those of an efficient and structurally comparable network operator and are transparent, whilst including appropriate return on investments, and, where appropriate, taking account of the benchmarking of tariffs by the regulatory authorities.


Fifthly, should the fee for the use of facilities installed on, over or under public property not take into account the objectives in Article 8 of the Framework Directive and, in particular, the promotion of competition in the provision of electronic communications networks and services and the development of the <mask> for those networks and services, that fee would be inconsistent with Article 13 of the Authorisation Directive.


Furthermore, it must be pointed out that that plea lacks any independent content. Under that plea, the applicant may, in order to preserve the procedural rights which it enjoys under the formal investigation procedure, rely only on pleas which show that the assessment of the information and evidence which the Commission had or could have had at its disposal during the preliminary examination phase of the measure notified ought to have raised doubts as to the compatibility of that measure with the <mask> (see, to that effect, judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81; of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 35; and of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 59), such as the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination phase or the existence of complaints submitted by third parties. It should be noted that the third plea repeats in condensed form the arguments raised under the first and second pleas, without identifying specific evidence relating to potential serious difficulties.


A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the <mask> of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.’


33. The GBER does not, in any of its provisions on research and development aid, exclude the obligation to notify by reference to the type of the beneficiary entity. Rather, the GBER takes a functional approach: it is the aid for the activities of fundamental research, industrial research, experimental development and feasibility studies that fulfils other criteria set out in Chapter III, Section IV, of the GBER that is exempt from the notification obligation (4) and thus presumed to be compatible with the <mask>.


It should further be recalled that Directive 2019/692 amended Directive 2009/73 in order (according to recital 3 thereof) to ‘address obstacles to the completion of the <mask> in natural gas which result from the non-application of Union market rules to gas transmission lines to and from third countries. The amendments introduced by this Directive are intended to ensure that the rules applicable to gas transmission lines connecting two or more Member States are also applicable, within the Union, to gas transmission lines to and from third countries’.


E.ON Földgáz Trade   concerned the standing of an operator in the Hungarian market in natural gas to challenge, as a holder of a gas transmission authorisation, a decision of an NRA which amended the rules of the gas network code for deciding on applications for long-term capacity allocation. The Court found that although Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the <mask> in natural gas and repealing Directive 98/30/EC   did not contain specific provisions on the remedies available to such an operator, the NRA was subject to EU rules concerning access of market operators to the natural gas transmission network in adopting its decision. On this basis, the Court held that those EU rules and the principle of effective judicial protection guaranteed by EU law ensured judicial review for third parties whose rights were potentially infringed by the NRA decision in question. As with Tele2 Telecommunication, T-Mobile Austria and Arcor, E.ON Földgáz Trade concerned an NRA decision which fell within the material scope of the relevant EU rules, namely, a decision relating to access to the gas transmission network.


Article 194 TFEU provides in paragraph 1 that, in the context of the establishment and functioning of the <mask> and with regard for the need to preserve and improve the environment, European Union policy on energy is to aim, in a spirit of solidarity between Member States, to ensure the functioning of the energy market, ensure security of energy supply in the European Union, promote energy efficiency and energy saving and the development of new and renewable forms of energy and promote the interconnection of energy networks (judgment of 4 May 2016, Commission v Austria, C‑346/14, EU:C:2016:322, paragraph 72 and the case-law cited).


It is a truth universally acknowledged that the fundamental freedoms which make up the <mask> are allergic to residence requirements. Under the fundamental freedoms, removing barriers based on residence requirements has, as it were, been in the spotlight of the activity of both the EU legislature   and the Court. In this connection, the Court has consistently held that national rules under which a distinction is drawn on the basis of residence are liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreigners.   Given that the fundamental freedoms are primarily addressed at Member States, cases dealt with by the Court mainly concern State measures imposing (national) residence requirements.


Second, even if that directive pursues a wider range of goals such as consumer and environmental protection,   the <mask> is ‘the key objective’.   The focus is still on cross-border access for new suppliers of electricity from different energy sources as well as for new providers of power generation.   As explained by recital 59 of Directive 2009/72, ‘the development of a true internal market in electricity, through a network connected across the Community, should be one of the main goals of this Directive’. In other words, Directive 2009/72 aims essentially at establishing an open and competitive internal market in electricity which enables consumers freely to choose their suppliers and those suppliers freely to deliver their products to their customers, create a level playing field in this market, ensure a secure supply of energy and a sustainable climate change policy.


The tax harmonisation measures taken to complete the <mask> should include the establishment of a common system for cooperation between the Member States, in particular as concerns exchange of information, whereby the Member States’ competent authorities are to assist each other and to cooperate with the [European] Commission in order to ensure the proper application of VAT on supplies of goods and services, intra-Community acquisition of goods and importation of goods.


Moreover, if the Court takes into account the criteria adopted by the Commission for the determination of the lump sum payment in the present case, the Commission’s assessment of seriousness does not appear to be the result of any error, having regard to the importance of the provisions of EU law infringed and the effects on public and private interests. It should be pointed out that Directive 2015/849 is a key legal instrument in the prevention of the use of the Union financial system for the purposes of money laundering and the financing of terrorism.   Situated in the context of establishing an effective and genuine Security Union,   that directive builds on previous directives and international activities in the field in order to strengthen the legal framework for combating money laundering and terrorist financing in the EU.   Similar to what the Court has held in respect of other <mask> directives,   Romania’s failure to adopt and notify transposition measures may be considered to impact the proper functioning of the internal market and thus has a certain degree of seriousness.


The obligation to pay illegality interest is also recognised, in principle, in situations where the aid does not have to be repaid, because it is compatible with the <mask>.   However, in the present case, TV 2 and Denmark, supported by the Netherlands and Austria, contend that the aid in question constituted compensation for the provision of services of general economic interest, which must have implications for the obligation to pay illegality interest.


The scope of the Member States’ discretion in the transposition into national law of a particular exception or limitation referred to in Article 5(2) or (3) of Directive 2001/29 must be determined on a case-by-case basis, in particular, according to the wording of the provision in question, the degree of the harmonisation of the exceptions and limitations intended by the EU legislature being based on their impact on the smooth functioning of the <mask>, as stated in recital 31 of Directive 2001/29. Judgment of 29 July 2019, Funke Medien NRW (C‑469/17, EU:C:2019:623, paragraph 40).


297 As regards, more specifically, the aim of the authorisation procedure, of which the identification procedure set out in Article 59 of Regulation No 1907/2006 forms part, Article 55 of that regulation states that its aim is essentially to ensure the proper functioning of the <mask> while assuring that the risks from substances of very high concern are properly controlled and that these substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable (see judgments of 13 July 2017, VECCO and Others v Commission, C‑651/15 P, EU:C:2017:543, paragraph 28 and the case-law cited, and of 30 April 2015, Polynt and Sitre v ECHA, T‑134/13, not published, EU:T:2015:254, paragraph 106 and the case-law cited).


56 Whilst an assessment of the compatibility of aid measures with the <mask> falls within the exclusive competence of the Commission, subject to review by the Courts of the European Union, it is for the national courts to ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU (judgment 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 28).


3 Article 41 of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the <mask> in application of Articles 107 and 108 [TFEU] (OJ 2014 L 187, p. 1), entitled ‘Investment aid for the promotion of energy from renewable sources’, provides: ‘1. Investment aid for the promotion of energy from renewable energy sources shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempted from the notification requirement of Article 108(3) of the Treaty, provided that the conditions laid down in this Article and in Chapter I are fulfilled. … 7. The aid intensity shall not exceed: (a) 45% of the eligible costs if the eligible costs are calculated on the basis of point (6)(a) or point (6)(b); (b) 30% of the eligible cost[s] if the eligible costs are calculated on the basis of point (6)(c). 8. The aid intensity may be increased by 20 percentage points for aid granted to small undertakings and by 10 percentage points for aid granted to medium-sized undertakings. …’ Regulation 2015/1589


1 This request for a preliminary ruling concerns the interpretation of Article 5(1)(c) and Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), and of Article 11 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the <mask> (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).


In recitals 196 and 197 of the decision at issue, the Commission stated that in the present case, it would apply the principles laid down in the 2014 Guidelines as regards operating aid. In recital 245 of the decision at issue, the Commission also expressly referred to the 2014 Guidelines, stating that the fact that the operating aid was incompatible with the <mask>, because the investment aid itself was incompatible with the internal market, was equally relevant in the context of the 2014 Guidelines. As the General Court observed in paragraph 84 of the judgment under appeal, the Commission also applied the first criterion of the 2014 Guidelines in recital 246 of the decision at issue, whereas in its appeal, the Commission submits that it applied only the criterion in paragraph 113(a) of the 2014 Guidelines.


Directive 2007/64 was repealed and replaced, with effect from 13 January 2018, by Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the <mask>, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64 (OJ 2015 L 337, p. 35). However, given the date at which the material facts arose, the dispute in the main proceedings is still governed by Directive 2007/64.


58. As regards the second aspect, I would emphasise that, when the ‘fishery de minimis’ regulation is applicable, the Member State may either notify the compensation at issue to the Commission for its approval as aid compatible with the <mask> or merely classify it as ‘de minimis aid’. It follows that, in this instance, the Latvian authorities could lawfully classify that compensation as ‘de minimis aid’.


Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the <mask> (‘Directive on electronic commerce’) must be interpreted as meaning that, in principle, the operator of a video-sharing platform and the operator of a file-hosting and -sharing platform can benefit from the exemption under that provision in respect of all liability that may result from the files that they store at the request of users of their platforms.


15 In the electricity or telecommunications sectors, the respective instruments provide that the national regulatory authorities are to be responsible for ensuring the resolution of disputes between undertakings (see Article 5(1)(b) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36), and Article 59(3)(e), (5)(b) and (6)(c) of Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the <mask> for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125)).


58 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Grand Chamber) hereby rules: 1. Article 20 of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the <mask> Information System (‘the IMI Regulation’), in so far as it requires the penalties provided for therein to be proportionate, has direct effect and may thus be relied on by individuals before national courts against a Member State which has transposed it incorrectly.


The field of tax law falls in principle within the competence of the Member States. Exceptions under Article 113 TFEU are turnover tax, excise duties and other forms of indirect taxation. For this reason, there are only a few rules of EU law in the field of direct taxation. In particular, Article 114(2) TFEU excludes fiscal provisions and Article 115 TFEU permits only EU laws and regulations which directly affect the establishment or functioning of the <mask>.


As regards the objectives, it can be inferred from recital 3 of Directive 2009/72 that the objective of this directive is to achieve a fully open and competitive <mask> in electricity in which all consumers can freely choose their supplier and in which all suppliers can freely supply their products. However, a priori, unlike obligations to provide a given service or to deliver particular goods, financing obligations are not likely to undermine such an objective, and even if they do, they are likely at least to do so to a much lesser extent.


(Appeal — Control of concentrations between undertakings — Notion of single concentration — Implementation of a concentration before it is notified and declared compatible with the <mask> — Fines imposed for the infringement of Article 4(1) and Article 7(1) of Council Regulation (EC) No 139/2004 — Principle ne bis in idem — Set-off principle — Principles governing concurrent offences)


See judgment of 28 March 1995, Evans Medical and Macfarlan Smith (C‑324/93, EU:C:1995:84, paragraph 20). I would point out that in that case the diamorphine was imported for medical use and that its importation was therefore lawful (judgment of 28 March 1995, Evans Medical and Macfarlan Smith, C‑324/93, EU:C:1995:84, paragraphs 4, 20 and 37). See the Opinion of Advocate General Bot in Josemans (C‑137/09, EU:C:2010:433, points 85 and 86), which reads ‘in the light of the <mask> rules, narcotic drugs do not all come under the same category. This difference does not relate to the nature of the goods, but to their final use. Thus, it is settled case-law that narcotic drugs which have a medical or scientific application come under the internal market rules. However, that is not the case with narcotic drugs imported illegally or intended for illicit purposes’. See, lastly, Blumann, C., ‘Le champ d’application du marché intérieur’, in Blumann, C. (dir.), Introduction au marché intérieur. Libre circulation des marchandises, Éditions de l’université de Bruxelles, Brussels, 2015 (paragraph 70).


Were the contrary true, the situation would quite clearly conflict with the establishment of an <mask>, which ‘implies that the conditions of entry and residence of a Union citizen in a Member State whose nationality he does not possess are the same in all the Member States’. See, to that effect, judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 68).


promoting, in close cooperation with the Agency, regulatory authorities of other Member States and the Commission, a competitive, secure and environmentally sustainable <mask> in natural gas within the Community, and effective market opening for all customers and suppliers in the Community, and ensuring appropriate conditions for the effective and reliable operation of gas networks, taking into account long-term objectives;


declare that, by requiring foreign higher education institutions to offer higher education in their country of origin, pursuant to Article 76(1)(b) of the Law on higher education, Hungary has failed to fulfil its obligations under Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the <mask> (OJ 2006 L 376, p. 36), and, in any event, under Articles 49 and 56 TFEU and Article XVII of the GATS;


In particular,   the General Court held that the applicants were directly concerned by the regulation at issue. The General Court recalled that, according to case-law, that condition requires that the contested EU measure directly affect the legal situation of the applicant on the one hand, and that there must be no discretion left to the addressees of that measure who are responsible for its implementation, on the other. The latter requirement was met because the Member States, who were responsible for implementing the regulation at issue, had no discretion as regards the rate of anti-dumping duty and the imposition of that duty on the product concerned. As regards the former requirement, the Council and the Commission argued that the modification of the rate of anti-dumping duty brought about by the regulation at issue was incapable of producing legal effects vis-à-vis the applicants because, on the one hand, the applicants did not pay any anti-dumping duty, and, on the other hand, they did not have a subjective right to have a certain level of anti-dumping duties imposed on their competitors. The General Court rejected this contention. Indeed, had the EU Courts adopted such a restrictive interpretation of that requirement, any action brought by a Union producer against a regulation imposing anti-dumping duties would have to be declared automatically inadmissible; the same would apply to any action brought by a competitor of the beneficiary of aid declared compatible with the <mask> by the Commission at the end of the formal investigation procedure, as well as to any action brought by a competitor against a decision declaring a concentration compatible with the internal market. However, case-law has declared these types of action admissible. Given that, in the present case, the applicants had lodged the request for the partial interim review, and the anti-dumping duties imposed at the end of the partial interim review procedure were intended to offset the injury they had suffered as competing producers operating on the same market, the General Court concluded that they were directly concerned by the regulation at issue.


8 Article 37 of that act reads as follows: ‘If Bulgaria or Romania has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the <mask>, including any commitments in all sectoral policies which concern economic activities with cross-border effect, or an imminent risk of such breach the Commission may, until the end of a period of up to three years after accession, upon motivated request of a Member State or on its own initiative, take appropriate measures. Measures shall be proportional and priority shall be given to measures which least disturb the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such safeguard measures shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’


Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the Office for Harmonisation in the <mask> (Trade Marks and Designs) (OJ 1996 L 28, p. 11), as amended by Commission Regulation (EC) No 2082/2004 of 6 December 2004 (OJ 2004 L 360, p. 8), and repealed by Commission Delegated Regulation (EU) 2017/1430 of 18 May 2017 supplementing Regulation No 207/2009 and repealing Commission Regulations (EC) No 2868/95 and (EC) No 216/96 (OJ 2017 L 205, p. 1).


Article 108(3) TFEU must be interpreted as meaning that a measure introduced by a Member State to finance, for a period extending over several years and up to a maximum amount of EUR 20 million, both compensation to support farmers who have been obliged to slaughter animals affected by infectious diseases and payment of fees due to self-employed veterinary surgeons involved in remediation activities, must be subject to the preliminary-examination procedure laid down in that provision in the case where that measure is not covered by an authorisation decision of the European Commission to that effect, unless that measure fulfils the conditions laid down by Commission Regulation (EU) No 702/2014 of 25 June 2014 declaring certain categories of aid in the agricultural and forestry sectors and in rural areas compatible with the <mask> in application of Articles 107 and 108 [TFEU], or the conditions laid down by Commission Regulation (EU) No 1408/2013 of 18 December 2013 on the application of Articles 107 and 108 [TFEU] to de minimis aid in the agriculture sector.


The principle of equivalence requires that national <mask> governing situations subject to EU law must be no less favourable than those governing similar domestic actions, while the principle of effectiveness requires that such provisions must not make it impossible or excessively difficult to exercise of rights conferred by EU law (see, to that effect, judgment of 19 December 2019, Deutsche Umwelthilfe, C‑752/18, EU:C:2019:1114, paragraph 33).


Moreover, although the Court has already held to be admissible questions referred for a preliminary ruling on the interpretation of <mask> of EU law which the referring court is required to apply in order to deliver its judgment, that is not the scope of the second and third questions referred in this case. Similarly, an answer by the Court to those questions does not appear capable of providing the referring judge with an interpretation of EU law which would allow him to resolve procedural questions of national law before being able to rule on the substance of the case before him. Accordingly, those questions do not therefore concern an interpretation of EU law which meets an objective need for the determination of that case, but are of a general nature and hence inadmissible.


In addition, it should be noted that, although the term ‘give judgment’, within the meaning of the second paragraph of Article 267 TFEU, encompasses the entire procedure leading to the referring court’s decision, that term must be interpreted broadly in order to prevent many procedural questions from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court and the latter from being unable to interpret all <mask> of EU law that the referring court is required to apply (see, to that effect, judgments of 11 June 2015, Fahnenbrock and Others, C‑226/13, C‑245/13, C‑247/13 and C‑578/13, EU:C:2015:383, paragraph 30, and of 16 June 2016, Pebros Servizi, C‑511/14, EU:C:2016:448, paragraph 28).


Secondly, although the Court has already held to be admissible questions referred for a preliminary ruling on the interpretation of <mask> of EU law which the referring court is required to apply in order to deliver its judgment (see, to that effect, inter alia, judgment of 17 February 2011, Weryński, C‑283/09, EU:C:2011:85, paragraphs 41 and 42), that is not the scope of the questions raised in the present joined cases.


Under established case-law, the primacy of EU law means that the national courts called upon, in the exercise of their jurisdiction, to apply provisions of EU law must be under the duty to give full effect to those provisions, if necessary refusing of their own motion to apply any conflicting provision of national law, including <mask>, and without requesting or awaiting the prior setting aside of that provision of national law by legislative or other constitutional means.   National courts are in particular required to ensure within their jurisdiction the judicial protection flowing from Article 47 of the Charter and to guarantee the full effectiveness of that article by disapplying if need be any contrary provision of national law.


Secondly, in so far as EUIPO dwells on the fact that Rule 19(2)(d) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) requires the opponent to provide evidence of the acquisition, continued existence and scope of protection of the earlier right, within the meaning of Article 8(4) of Regulation No 207/2009, and that, according to Rule 20(1) of Regulation No 2868/95, failure to comply with that requirement entails the rejection of the opposition as unfounded, it must be pointed out that, under Article 80 and Article 82(2)(b) of Delegated Regulation 2018/625, those <mask> of Regulation No 2868/95 are indeed applicable in the present case.


That situation is exactly different from that in which the Court held to be admissible questions referred for a preliminary ruling on the interpretation of procedural ‘provisions’ of EU law which the referring court is required to apply in order to deliver its judgment, as is pointed out in paragraph 50 of Miasto Łowicz. Significantly, the Court has also held that the terms ‘give judgment’, within the meaning of the second paragraph of Article 267 TFEU, encompass the whole ‘procedure leading to the judgment’ of the referring court and must, therefore, be interpreted broadly in order to prevent many procedural questions from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court and the latter from being unable to interpret all <mask> of EU law that the referring court is required to apply (judgment of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162, paragraph 35 and the case-law cited)).


It can thus be appreciated that the phrase ‘give judgment’, used by Article 267 TFEU, has been interpreted broadly, thereby seeking to prevent ‘many procedural questions from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court and the latter from being unable to interpret all <mask> of EU law that the referring court is required to apply’.


In that regard, the referring court points out first of all that, in accordance with the principle of effectiveness of EU law as interpreted by the case-law of the Court, national procedural rules relating to the finality of a judicial decision may not make it excessively difficult for the court before which an application for enforcement has been brought to refuse to apply unfair terms. However, under Slovenian law, in enforcement proceedings brought on the basis of a directly enforceable notarial instrument, the competent court is nevertheless faced with <mask> of that nature. More specifically, they are provisions of national law relating to the implementation of the principle of formal legality and the legal conditions for the suspension of enforcement, as laid down by the Law on enforcement and protective measures.


That objective is implemented by detailed <mask> in Regulation No 1215/2012. It thus follows from Article 17(1) of that regulation that, in the cases it sets out, jurisdiction must be determined on the basis of specific rules applicable to contracts concluded between a consumer and a professional which are set out in Chapter II, Section 4 of that regulation.


Having regard to the dates on which the applications for registration of the trade marks applied for were made — in the present case on 19 August 2008 for registrations No 982020 and No 982021, on 2 April 2009 for registration No 1007952 and on 8 September 2009 for registration No 1017273, which are determinative for the purposes of identifying the applicable substantive law — the present proceedings are governed, first, by the <mask> of Regulation No 207/2009 and, secondly, by the substantive provisions of Regulation No 40/94 for registrations No 982020, No 982021 and No 1007952 and by the substantive provisions of Regulation No 207/2009 for Registration No 1017273. The substantive provisions of those two relevant regulations are, in essence, identical for the purposes of the present proceedings.


In its decision of 3 August 2017, the Arbitration Panel found, at the outset, that the <mask> of the 2015 Law on Public Procurement were applicable in the present instance, since, although that law did not enter into force until 1 November 2015 and, in principle, concerns only contracts entered into after that date, it applies, by virtue of the transitional provisions contained in Article 197(1) thereof, to the review of amendments to contracts made before it entered into force. The Arbitration Panel pointed out that the project carried out under the contract at issue in the main proceedings received EU funding and that, therefore, in accordance with Article 80(3) of Government Decree 4/2011, the period for a body or person to initiate a procedure of its own motion expires on 31 December 2020.


55. According to Article 22(1) of Directive 2014/104, national measures transposing the substantive provisions of that directive are not to apply retroactively. However, that rule does not apply to national measures transposing the ‘other’ provisions of that directive. As regards the latter transposing measures, Member States are to ensure, in accordance with Article 22(2) of that directive, only that those measures are not to apply to actions for damages of which a national court was seised prior to 26 December 2014. Consequently, those provisions must be applied in proceedings brought before a national court after the date of transposition of Directive 2014/104. That logic of the applicability of the non-substantive provisions of that directive is typical, under national law, for <mask>. I infer from this that the reference to ‘national measures … other than [substantive provisions]’, for the purposes of Article 22(2) of that directive, relates to procedural provisions.


It will therefore be for the referring court to examine, in the light of all the other relevant circumstances prevailing in the dispute before it, whether the Grand Duchy of Luxembourg exceeded the limits of its discretion by not providing that a person supplying services which is in a situation such as that of the applicant in the main proceedings may benefit, for the purposes of his or her business, from recognition as a body devoted to social wellbeing. It is only if that Member State has exceeded those limits that it will be for the referring court itself to grant such a recognition in respect of the period at issue in the main proceedings, if necessary by disapplying the substantive or <mask> of domestic law precluding that recognition.


With regard to the contextual interpretation, namely the normative context in which the provision is placed, it must be noted that Article 27 of Directive 2004/38 is the first provision of Chapter VI of that directive entitled ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’.   Moreover, Article 27 is itself entitled ‘General principles’, which means that such principles are developed by the provisions which follow. However, all those provisions of Chapter VI deal only with protection against expulsion (Article 28 — Protection against expulsion; Article 32 — Duration of exclusion orders, and Article 33 — Expulsion as a penalty or legal consequence), the type of diseases which may prevent entry into the territory of a Member State or justify expulsion (Article 29) and procedural safeguards against any decision taken on the basis of Article 27 of the directive (Article 30 — Notification of decisions, and Article 31 — Procedural safeguards). Most — if not all — of those <mask> expressly relate only to expulsion decisions.


However, the dispute, for which the opinion of this Court is sought, is the preliminary issue concerning Mr Netejoru’s quality of representation, raised as an incident in the main proceedings. The fact that those proceedings concern a preliminary matter does not mean a lack of relevance and, therefore, the inadmissibility of the reference for preliminary ruling. Indeed, the Court, in assessing whether a question referred is necessary to enable a referring court to ‘give judgment’ within the meaning of the second paragraph of Article 267 TFEU, has adopted a broad interpretation of that concept. It notably encompasses ‘the whole of the procedure leading to the judgment of the referring court, in order that the Court of Justice is able to interpret all <mask> of European Union law that the referring court is required to apply in order to give judgment’.   That interpretation has made it possible for procedural questions regarding the entire process of creating the judgment to be regarded as admissible, including all issues relating to the responsibility for the costs of proceedings, or taking of evidence.   Moreover, in the past, the Court has shown itself to be traditionally rather generous in not examining too closely the substantive proximity of the issues raised with regard to main proceedings.


Since the Basic Regulation and Regulation No 874/2009 contain provisions governing the admissibility of evidence submitted out of time, it must be held that Article 81, which provides that, in the absence of <mask> in Regulation No 874/2009 or in provisions adopted pursuant to that regulation, the CPVO is to apply the principles of procedural law which are generally recognised in the Member States, and which according to the applicant, in the present case required the CPVO to refer to those principles, is not applicable in the present case.


The European Court of Human Rights has held that the positive obligations flowing from Articles 3 and 8 of the ECHR, whose corresponding safeguards are set out in Articles 4 and 7 of the Charter, require, in particular, the adoption of substantive and <mask> as well as practical measures enabling effective action to combat crimes against the person through effective investigation and prosecution, that obligation being all the more important when a child’s physical and moral well-being is at risk. However, the measures to be taken by the competent authorities must fully respect due process and the other safeguards limiting the scope of criminal investigation powers, as well as other freedoms and rights. In particular, according to that court, a legal framework should be established enabling a balance to be struck between the various interests and rights to be protected (ECtHR, 28 October 1998, Osman v. United Kingdom, CE:ECHR:1998:1028JUD002345294, §§ 115 and 116; 4 March 2004, M.C. v. Bulgaria, CE:ECHR:2003:1204JUD003927298, § 151; 24 June 2004, Von Hannover v. Germany, CE:ECHR:2004:0624JUD005932000, §§ 57 and 58; and 2 December 2008, K.U. v. Finland, CE:ECHR:2008:1202JUD000287202, §§ 46, 48 and 49).


Against that background, the referring court is uncertain, in essence, whether Articles 15 and 31 of Directive 2004/38, and the principle of effective judicial protection enshrined in Article 47 of the Charter, must be interpreted as meaning that the courts of the host Member State, when examining the legality of a decision refusing the right of residence for more than three months of a Union citizen who is seeking employment, must have regard to any change of circumstances in the jobseeker’s situation occurring subsequent to the decision of the competent authorities restricting that person’s right of residence, disapplying, if necessary, the national <mask> if that change of circumstances shows that the jobseeker did enjoy such a right of residence.


In view of: (i) the fact that, in the preliminary question, the referring court raises the difficulty that Romanian law does not recognise the concept of a legal separation and, therefore, does not contain <mask> applicable to such procedures; (ii) the approach of the Romanian courts mentioned in point 23 of the present Opinion; and (iii) providing a complete and useful answer to the referring court, I consider it necessary for the Court to also provide guidance on the consequences of the proposed answer to the preliminary question.


In the cases at hand, the President of the PPA initiated ex officio reviews of the modifications of the two public contracts at issue. The modifications occurred in 2009 and 2010 respectively. At the time of the modifications, the applicable national legislation was the 2003 Law on Public Procurement. However, the transitional provisions of the 2015 Law on Public Procurement (in Article 197) have been interpreted in such a way that the <mask> of that law apply to modifications of public contracts that occurred before that law entered into force.


The facts at issue in these proceedings occurred prior to the entry into force of the Directive on Antitrust Damages Actions (Directive 2014/104/EU  ) and the proceedings at first instance also were initiated by the Province of Upper Austria before the entry into force of Directive 2014/104.   Thus, Directive 2014/104 does not apply in the present proceedings ratione temporis and there is no need to clarify if any relevant provisions of Austrian law are of a substantive or procedural nature. Indeed, according to Article 22 of Directive 2014/104, substantive measures implementing the Directive are subject to a general prohibition on retroactive effect, whereas all other national implementing provisions – namely <mask> – apply to facts that occurred prior to the entry into force of the Directive, but only in the context of proceedings initiated after the entry into force of the Directive.


If the proposition regarding the application of Article 83 was accepted, which was appropriate in these proceedings once the application of Article 80 of Regulation No 207/2009 had been ruled out, it was not [necessary] to establish the definition of the principle that unlawful acts may be revoked in general or its treatment in case-law but rather to interpret Article 83 of Regulation No 207/2009, in accordance with which, in the absence of <mask> in that regulation, ‘the Office shall take into account the principles of procedural law generally recognised in the Member States’.


The Court stated first, that the disputes in the main proceedings were not substantively connected to EU law, in particular to the second subparagraph of Article 19(1) TEU to which the questions referred related. The referring courts were not therefore required to apply that law, or that provision, in order to determine the substance of the disputes before them. It stated, secondly, that the questions referred did not concern the interpretation of <mask> of EU law which the referring courts were required to apply in order to deliver judgment. Thirdly, an answer by the Court to the questions referred was incapable of providing the referring courts with an interpretation of EU law that would allow them to resolve procedural questions of national law before being able to rule on the substance of the disputes before them. Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 49 to 53).


However, it does not follow from the case-law cited in paragraphs 64 and 65 above that the seller or supplier is also required to inform the consumer, before a contract is concluded, of the general <mask> of domestic law of its own State of residence, such as those relating to the allocation of the burden of proof, or the relevant case-law.


In paragraphs 70 and 71 of the first of those judgments, the Court held that the inclusion, within the legal system of the issuing Member State, of procedural rules according to which the proportionality of the decision of the Public Prosecutor’s Office to issue a European arrest warrant may be subject, before or after the actual surrender of the requested person, to judicial review before or almost at the same time as the European arrest warrant is issued and, in any event, after it has been issued, meets the requirement of effective judicial protection. In the case that gave rise to that judgment, as is clear from paragraphs 68 and 69 thereof, that finding was based on the existence of a set of <mask> guaranteeing the involvement of a court as soon as the national arrest warrant was issued against the requested person and, therefore, before he was surrendered.


21 As regards the procedure before the Opposition Division, the <mask> of Regulation No 2868/95 on opposition proceedings, namely Rules 15 to 20, are applicable to the present case, in accordance with a combined reading of the transitional provisions laid down in Article 81(2)(a) and (b) of Commission Delegated Regulation (EU) 2017/1430 of 18 May 2017 supplementing Regulation (EC) No 207/2009 and repealing Regulations (EC) No 2868/95 and (EC) No 216/96 (OJ 2017 L 205, p. 1) and in Article 82(2)(a) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation 2017/1430 (OJ 2018 L 104, p. 1).


Under those circumstances, the question now arises as to whether Articles 15 and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, must be interpreted as meaning that the national courts must have regard to changes of circumstances occurring after the adoption of the decisions restricting the rights to move and reside freely, disapplying, if necessary, the national <mask> if such changes show that the jobseeker did enjoy such a right of residence.


Nor is this conclusion called into question by the case-law referred to by the applicant in support of its argument that the Board of Appeal should have admitted the evidence submitted late, since, according to that case-law, there is no reason to preclude additional evidence which merely supplements other evidence submitted within the time limit imposed from being taken into account, where the initial evidence was not irrelevant but has been challenged as insufficient by the other party (judgment of 28 March 2012, Rehbein v OHIM — Dias Martinho (OUTBURST), T‑214/08, EU:T:2012:161, paragraph 53). This case-law concerns the application of <mask> concerning EU trade marks relating to proof of use, according to which, if the opposing party fails to provide proof of use of the trade mark within the prescribed time limits, the European Union Intellectual Property Office (EUIPO) must reject the opposition. These provisions have no equivalent in the field of Community plant variety rights. Therefore, that case-law cannot be applied by analogy to the present case.


Secondly, the questions referred bear no relation to the procedures and the subject matter of the disputes in the main proceedings and are general and hypothetical in nature, in that the referring courts are not called upon to apply, in those disputes, either the national provisions relating to the disciplinary regime for judges or the second subparagraph of Article 19(1) TEU. The hypothetical nature of the questions also stems from the fact that the opening of disciplinary proceedings following the decisions which the referring courts will deliver in the main proceedings appears, at this stage, to be a mere possibility, so that the questions do not relate to the disputes in the main proceedings, but to possible future disputes which might arise between the judges concerned and the national disciplinary authorities. An answer to those questions will not affect the obligation of the referring courts to rule on the cases in the main proceedings on the basis of the applicable substantive and <mask> of national law, nor will it alter the scope of that obligation. It is not therefore necessary for the resolution of those cases.


Articles 15 and 31 of Directive 2004/38, and the principle of effectiveness, must be interpreted as meaning that the courts of the host Member State, when examining the legality of a decision refusing the right of residence for more than three months of a Union citizen who is seeking employment, must have regard to any change of circumstances in the jobseeker’s situation occurring subsequent to the decision by the competent authorities restricting that person’s right of residence, disapplying, if necessary, the national <mask> if that change of circumstances shows that the jobseeker did enjoy such right of residence.


Unlike the cases which gave rise to the judgments cited in paragraphs 64 and 65 above, the case in the main proceedings does not concern the obligation on the part of the seller or supplier to inform the consumer of the existence of mandatory provisions of international private law. Nor does it concern the obligation of the seller or supplier to inform the consumer of mandatory provisions under which the amount to be repaid by the consumer may vary and which therefore have a direct effect on the economic consequences for the consumer arising from the contract. Instead, the issue in the main proceedings is the consumer information concerning the existence of general <mask> relating to the allocation of the burden of proof and their interpretation in case-law on the date the contract was concluded.


Do the Bulgarian <mask> governing the special procedure for an order for the adoption of compulsory medical measures provided for in Article 427 et seq. of the Code of Criminal Procedure, under which a court is not empowered to refer the proceedings back to the Public Prosecutor’s Office with the instruction to rectify the procedural errors committed in the course of the pre-trial procedure, but can either grant the application for an order for the adoption of compulsory medical measures or reject it, constitute an effective remedy, within the meaning of Article 12 of Directive 2013/48 and Article 8 of Directive 2012/13 read in conjunction with Article 47 of the Charter, which confers on the person concerned the right to challenge before a court any infringements of their rights which may have been committed in the course of the pre-trial procedure?


As a preliminary point, it should be observed that, given the date on which the application for registration was filed, namely 29 September 2004, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 40/94 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 29 January 2020, Sky and Others, C‑371/18, EU:C:2020:45, paragraph 49). Furthermore, since, in accordance with settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the <mask> of Regulations No 207/2009 and 2017/1001.


In its decision of 18 August 2017, the Arbitration Panel found, at the outset, that the <mask> of the 2015 Law on Public Procurement were applicable in the present instance, since, although that law did not enter into force until 1 November 2015 and, in principle, concerns only contracts concluded after that date, it applies, by virtue of the transitional provisions contained in Article 197(1) thereof, to the review of amendments to contracts made before the date on which it entered into force.


That interpretation is also supported by the objective pursued by Article 80(1). That provision seeks to impose on EUIPO the obligation to revoke decisions containing an obvious procedural error with the aim of guaranteeing good administration and procedural efficiency. In the light of that objective, there is no reason to exclude from the scope of Article 80(1) of Regulation No 207/2009 obvious errors committed by EUIPO relating to the infringement of the obligation to state reasons imposed on it under Article 75 of Regulation No 207/2009, which falls under the <mask> of that regulation.


According to the Court, ‘in the absence of provisions in [the SEA Directive] on the consequences of infringing the <mask> which it lays down, it is for the Member States to take, within the sphere of their competence, all the general or particular measures necessary to ensure that all “plans” or “programmes” likely to have “significant environmental effects” within the meaning of Directive 2001/42 are subject to an environmental assessment prior to their adoption in accordance with the procedural requirements and the criteria laid down by that directive’.


131. It is for the national court to determine whether the national <mask> applicable in the framework of the recovery action lodged by the State allow for such full rights of defence for the judge concerned. If that were not the case, it is for the referring court to interpret the national procedural provisions in conformity with the requirements of the rights of the defence of Article 47 of the Charter, in order to give the judge, in the framework of either the proceedings between the injured party and the State or certainly at latest in the proceedings between the State and the judge concerned, the possibility to present his or her position in full with regard to all the elements alleged. (c) Conclusion and a caveat


In the absence of provisions in that directive on the consequences of infringing the <mask> which it lays down, it is for the Member States to take, within the sphere of their competence, all the general or particular measures necessary to ensure that all ‘plans’ or ‘programmes’ that are likely to have ‘significant environmental effects’, within the meaning of that directive, are subject to an environmental assessment, in accordance with the procedural requirements and the criteria laid down by that directive (see, to that effect, judgment of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 30 and the case-law cited).


The Arbitration Panel argues that the present cases are not about the (re)opening of time limits that have already lapsed under the previous <mask> in force at the time of the modifications, but about allowing the exercise, in the context of administrative review, of new monitoring competences laid down in Article 83 of Directive 2014/24 and Article 99 of Directive 2014/25. The predecessor of the Public Procurement Authority did not have such a review competence. Consequently, the 2015 Law on Public Procurement does not allow for the reopening of an expired deadline, but it does allow for the exercise of an entirely new competence. The President of the PPA and the Hungarian Government largely share that view, although with some minor variations.


Secondly, although the Court has already held admissible questions referred for a preliminary ruling on the interpretation of <mask> of EU law which the referring court concerned is required to apply in order to deliver its judgment (see, to that effect, judgment of 17 February 2011, Weryński, C‑283/09, EU:C:2011:85, paragraphs 41 and 42), that is not the scope of the second and third questions raised in the present case (see, by analogy, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 50).


It is apparent from the order for reference that the law applicable to the dispute in the main proceedings is, in accordance with Article 8(a) of that regulation, Italian law and that, under that law, a divorce may be applied for only if, in particular, a legal separation has previously been established or declared by a court, whereas the law of the forum, namely Romanian law, neither lays down that condition nor contains <mask> relating to legal separation.


First, the referring court has explained the relevance of the questions referred for the purposes of the main proceedings. According to the order for reference, the national court must rule as a preliminary matter, pursuant to national <mask>, on the procedural objections that may render the hearing of evidence or the examination of substance redundant.   At this stage, the main proceedings are halted precisely because of that procedural objection, based on the fact that Mr Netejoru, who, in his capacity as Chief Inspector, pursuant to Emergency Ordinance No 77/2018, signed the defence as representative of the Judicial Inspection, lacked the relevant representation powers.


Contrary, once again, to the claims of the Spanish Government, it seems plain to me that a suspension of that nature cannot affect the applicant in the main proceedings as a Member of the European Parliament. Admittedly, Members of the European Parliament are elected in the Member States, in accordance with the arrangements established by their national law, harmonised in certain respects by the 1976 Act. It is for the purposes of that election that the Treaty allocates seats in the Parliament among the Member States on a ‘degressively proportional’ basis (Article 14(2), third paragraph, TEU). That is also why, in addition to purely <mask>, the Member States apply their own rules as regards, in particular, eligibility. They are also authorised to apply their own rules on incompatibility to Members of the European Parliament elected in their respective territories, in addition to the list of incompatible offices in Article 7 of the 1976 Act. It also makes sense that the national law of the Member States governs monitoring of the validity of elections.


The terms ‘give judgment’, within the meaning of the second paragraph of Article 267 TFEU, encompass the whole procedure leading to the referring court’s judgment and must, therefore, be interpreted broadly in order to prevent many procedural questions from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court and the latter from being unable to interpret all <mask> of EU law that the referring court is required to apply (see, to that effect, judgment of 16 June 2016, Pebros Servizi, C‑511/14, EU:C:2016:448, paragraph 28 and the case-law cited).


31. First, as regards the preventive measures, it points out that the Residence Directive contains no provision concerning measures which may be taken in respect of Union citizens or members of their families in order to avoid a risk of absconding where they have been the subject of an expulsion decision, and that, in the absence of harmonisation of EU law, these may be adopted by the national legislature which must, in principle, be free to do so by drawing inspiration from similar provisions applicable in national law to illegally staying third-country nationals, under the Return Directive. In that regard, the referring court states that the Court of Justice has already held, in the judgment in Petrea, (10) that the Member States may draw inspiration from the provisions of the Return Directive to designate competent authorities and to define the procedure applicable to the adoption of a decision ordering the return of a Union citizen, if that is not precluded by any provision of EU law. The referring court queries whether that case-law applies to the present case, since it considers, in essence, that the preventive measures, which necessarily have an effect on the very exercise of the right to free movement and residence, cannot be classified as <mask>.


Admittedly, the referring court notes, it is apparent from the case-law of the Court in the judgment of 14 September 2017, Petrea (C‑184/16, EU:C:2017:684), that EU law does not preclude a decision to expel a Union citizen from being adopted by the same authorities and according to the same procedure as a decision to return an illegally staying third-country national where the measures transposing Directive 2004/38 into national law are more favourable to that Union citizen. However, the national provisions at issue in the main proceedings are not intended to designate the authority competent to take an expulsion decision in respect of Union citizens and their family members and do not cover <mask>, but concern restrictions on the fundamental rights of Union citizens and their family members that are not provided for by Directive 2004/38.


15 The Gesetz zur Durchführung der gemeinsamen Marktorganisationen und der Direktzahlungen (Marktorganisationsgesetz) (Law implementing the common organisation of markets and direct payments) of 7 November 2017 (BGBl. 2017 I, p. 3746), in the version applicable to the dispute in the main proceedings in Case C‑415/20 (‘the Law implementing the common organisation of markets and direct payments’), provides, in Paragraph 6 thereof, entitled ‘Benefits’: ‘1. The Bundesministerium für Ernährung und Landwirtschaft [(Federal Ministry of Food and Agriculture, Germany)] is empowered to adopt … by means of regulations not subject to approval by the Bundesrat [(Federal Council, Germany)], in so far as this is necessary for the implementation of (1) provisions and acts … relating to products which are the subject of a common organisation of the market … in respect of (a) export refunds, … <mask> and provisions specifying the conditions and the amount of those benefits, in so far as they are determined, determinable or circumscribed … …’


17 It must be noted, at the outset, that, in view of the date on which the application for protection in the European Union of the international registration of the contested mark was filed, namely 16 October 2016, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited). Furthermore, in so far as, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the present dispute is governed by the <mask> of Regulation 2017/1001.


Where the facts as finally ascertained justify the extension of measures, this shall be done by the Commission acting in accordance with the examination procedure referred to in Article 15(3). The extension shall take effect from the date on which registration was imposed pursuant to Article 14(5), or on which guarantees were requested. The relevant <mask> of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article.


Do the Bulgarian <mask> governing the special procedure for an order for the adoption of compulsory medical measures provided for in Article 427 et seq. of the NPK (Nakazatelno-protsesualen kodeks) (Code of Civil Procedure, Bulgaria), under which the court is not empowered to refer the proceedings back to the Public Prosecutor’s Office with the instruction to rectify the procedural errors committed in the course of the pre-trial procedure, but can either grant the application for an order for the adoption of compulsory medical measures or reject it, constitute an effective remedy, within the meaning of Article 12 of Directive 2013/48 and Article 8 of Directive 2012/13 in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, which confers on persons the right to challenge before a court any infringements of their rights which may have been committed in the course of the pre-trial procedure?


22 Lastly, since the appeal before the Board of Appeal was filed on 30 April 2018, first, the relevant <mask> are those laid down in Regulation 2017/1001, which is applicable from 1 October 2017. Second, it was appropriate to apply, for a limited period up to 13 May 2018, the procedural provisions listed under Title V of Delegated Regulation 2017/1430, given that, in accordance with Article 81(2)(j) of that regulation, those provisions were applicable to appeals brought before the Boards of Appeal of EUIPO after 1 October 2017. That regulation was subsequently repealed on 13 May 2018 by Delegated Regulation 2018/625, of which, in particular, Article 82(2)(j), concerning the application of the rules applicable to proceedings before the Board of Appeal, must be emphasised.


70. Beyond the material criteria mentioned above, I recall, moreover, that Article 25 of the Schengen Borders Code is also framed by <mask> aimed, in particular, at ensuring – in the form of monitoring carried out by the Commission – that the material criteria are satisfied whenever a Member State plans to reintroduce (or prolong or renew) border control at its borders. (47)


Second, although the Court has already held to be admissible questions referred for a preliminary ruling on the interpretation of <mask> of EU law which the referring court is required to apply in order to deliver its judgment (see, to that effect, inter alia, judgment of 17 February 2011, Weryński, C‑283/09, EU:C:2011:85, paragraphs 41 and 42), that is not the scope of the questions raised in the present case (see, to that effect, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 50).


In its defence, the Republic of Poland contends, inter alia, that Articles 47 and 48 of the Charter are not applicable to disciplinary cases concerning national judges in the absence of a situation where EU law is being implemented for the purposes of Article 51(1) of the Charter. In particular, it argues that the second subparagraph of Article 19(1) TEU does not constitute the source of fundamental rights of the defence or the right to be heard within a reasonable time. That Member State considers that the disciplinary cases conducted on the basis of the <mask> challenged by the Commission are of a purely internal nature and that, in defining those procedures, the Polish authorities have not regulated fields covered by Union law for the purposes of that provision, read in conjunction with Article 5 TEU and Articles 3 and 4 TFEU.


It is against the backdrop of those different positive obligations that the Court must strike a balance between the various interests and rights at issue. The European Court of Human Rights has held that the positive obligations flowing from Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, whose corresponding safeguards are set out in Articles 4 and 7 of the Charter, require, in particular, the adoption of substantive and <mask> as well as practical measures enabling effective action to combat crimes against the person through effective investigation and prosecution, that obligation being all the more important when a child’s physical and moral well-being is at risk. However, the measures to be taken by the competent authorities must fully respect due process and the other safeguards limiting the scope of criminal investigation powers, as well as other freedoms and rights. In particular, according to that court, a legal framework should be established enabling a balance to be struck between the various interests and rights to be protected (judgment of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraphs 127 and 128 and the case-law cited).


3. Investigations shall be initiated pursuant to this Article on the initiative of the Commission or at the request of a Member State or any interested party on the basis of sufficient evidence regarding the factors set out in paragraph 1. Initiations shall be made, after consultation of the Advisory Committee, by Commission Regulation which may also instruct the customs authorities to make imports subject to registration in accordance with Article 14(5) or to request guarantees. Investigations shall be carried out by the Commission, which may be assisted by customs authorities and shall be concluded within nine months. When the facts as finally ascertained justify the extension of measures, this shall be done by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. The extension shall take effect from the date on which registration was imposed pursuant to Article 14(5) or on which guarantees were requested. The relevant <mask> of this Regulation with regard to initiations and the conduct of investigations shall apply pursuant to this Article.


According to settled case-law, the admissibility of a request for a preliminary ruling is subject to the referring court being ‘called upon to give judgment in proceedings intended to lead to a decision of a judicial nature’.   This means that a reference received from a national court that, exceptionally, intervenes in a procedure of an administrative nature is not admissible.   By contrast, that does not mean that the decision which the referring court is to take, in the main proceedings, on the specific issue raised in the context of its questions referred must relate to the closure of the procedure, let alone take the form of a judgment. The Court has consistently stated that questions are admissible when they concern issues of procedure relating to ‘the whole procedure leading to the referring court’s judgment’. The requirement in question must in fact be ‘interpreted broadly in order to prevent many procedural questions from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court and the latter from being unable to interpret all <mask> of EU law that the referring court is required to apply’.


I would recall that, according to the Court, ‘in the absence of provisions in [Directive 2001/42] on the consequences of infringing the <mask> which it lays down, it is for the Member States to take, within the sphere of their competence, all the general or particular measures necessary to ensure that all “plans” or “programmes” likely to have “significant environmental effects” within the meaning of Directive 2001/42 are subject to an environmental assessment prior to their adoption in accordance with the procedural requirements and the criteria laid down by that directive’.


Next, it must be borne in mind that it follows from the examination of the second and third parts of the first ground of appeal that the General Court did not err in law in taking the view that the Commission had been right to find that there is no <mask> on the market for the management and operation of the national railway infrastructure.


While, in accordance with its usual meaning in everyday language, the concept of ‘bad faith’ presupposes the presence of a dishonest state of mind or intention, that concept must also be understood in the context of trade mark law, which is that of the course of trade. In that regard, Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), Regulation No 207/2009 and Regulation 2017/1001, which were adopted successively, have the same objective, namely the establishment and functioning of the internal market. The rules on the EU trade mark are aimed, in particular, at contributing to the system of undistorted <mask> in the European Union, in which each undertaking must, in order to attract and retain customers through 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 (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 45 and the case-law cited; see also, to that effect, judgment of 29 January 2020, Sky and Others, C‑371/18, EU:C:2020:45, paragraph 74).


Furthermore, the principle of fiscal neutrality precludes economic operators actually carrying on the same activities from being treated differently as far as the levying of VAT is concerned   in order to avoid distortions of <mask>. If, however, the two taxable persons ultimately carry out only exempt transactions in the same tax period, neither has a right to deduct. A right to deduct existing solely on the basis of one’s undertaking’s former intention to carry out taxable transactions would afford it a competitive advantage. In addition to the problem of an adequate review of that intention, such an outcome would also run counter to the approach taken by the Court, according to which regard should be had, in assessing a transaction to be taxed, to the objective character of the transaction and not to subjective intentions.


3 Recitals 9, 10, 13 and 142 of the GDPR state: ‘(9) The objectives and principles of Directive [95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)] remain sound, but it has not prevented fragmentation in the implementation of data protection across the Union, legal uncertainty or a widespread public perception that there are significant risks to the protection of natural persons, in particular with regard to online activity. Differences in the level of protection of the rights and freedoms of natural persons, in particular the right to the protection of personal data, with regard to the processing of personal data in the Member States may prevent the free flow of personal data throughout the Union. Those differences may therefore constitute an obstacle to the pursuit of economic activities at the level of the Union, distort <mask> and impede authorities in the discharge of their responsibilities under Union law. Such a difference in levels of protection is due to the existence of differences in the implementation and application of Directive [95/46]. (10) In order to ensure a consistent and high level of protection of natural persons and to remove the obstacles to flows of personal data within the Union, the level of protection of the rights and freedoms of natural persons with regard to the processing of such data should be equivalent in all Member States. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union. … … (13) In order to ensure a consistent level of protection for natural persons throughout the Union and to prevent divergences hampering the free movement of personal data within the internal market, a Regulation is necessary to provide legal certainty and transparency for economic operators, including micro, small and medium-sized enterprises, and to provide natural persons in all Member States with the same level of legally enforceable rights and obligations and responsibilities for controllers and processors, to ensure consistent monitoring of the processing of personal data, and equivalent sanctions in all Member States as well as effective cooperation between the supervisory authorities of different Member States. … … (142) Where a data subject considers that his or her rights under this Regulation are infringed, he or she should have the right to mandate a not-for-profit body, organisation or association which is constituted in accordance with the law of a Member State, has statutory objectives which are in the public interest and is active in the field of the protection of personal data to lodge a complaint on his or her behalf with a supervisory authority, exercise the right to a judicial remedy on behalf of data subjects or, if provided for in Member State law, exercise the right to receive compensation on behalf of data subjects. A Member State may provide for such a body, organisation or association to have the right to lodge a complaint in that Member State, independently of a data subject’s mandate, and the right to an effective judicial remedy where it has reasons to consider that the rights of a data subject have been infringed as a result of the processing of personal data which infringes this Regulation. That body, organisation or association may not be allowed to claim compensation on a data subject’s behalf independently of the data subject’s mandate.’


158. First of all, I recall that Directive 2008/7 provides for complete harmonisation of the cases in which the Member States may levy indirect taxes on the raising of capital (77) in order to eliminate, as far as possible, factors which may distort conditions of <mask> or hinder the free movement of capital, and thus to ensure the smooth functioning of the internal market. (78)


10 In that respect, the appellant relies on the judgment of the Court of 29 January 2020, Sky and Others (C‑371/18, EU:C:2020:45), which makes reference to Sky’s intention, by means of the Sky marks, to block and monopolise the use of the word ‘sky’ and not to use it in good faith and in accordance with the rules on fair <mask>. Therefore, it submits that Sky appears to wish to prevent third parties from registering other marks containing the word ‘sky’, even if it is registered with other combinations of words and in a stylised manner accompanied by other figurative elements.


In the fifth place, the General Court examined and then rejected, in paragraphs 186 to 195 of the judgment under appeal, the fifth plea, seeking to call into question the decision at issue in so far as it infringed the appellants’ right to avoid self-incrimination, by requiring them to respond to questions going beyond the scope of the supply of information that is factual in nature or to demonstrate that they had complied with EU <mask> rules. In that regard, the General Court noted, in particular, that (i) the information requested was of a purely factual nature, (ii) that information concerned data to which only the appellants could have access and, therefore, the appellants were required to provide that information even if it might be used to establish the existence of anticompetitive conduct and (iii) the appellants had failed to establish that the fact that, in order to respond to the questions put to them, they had to marshal the requested factual data in a document intended to facilitate the Commission’s understanding thereof was capable of constituting an infringement of that right in their regard.


It is apparent from paragraph 23 of the judgment of 29 September 1998, Canon (C‑39/97, EU:C:1998:442), that, in assessing the similarity of the goods or services at issue, all the relevant factors should be taken into account. Those factors include, inter alia, their nature, their intended purpose, their method of use and whether they are in <mask> with each other or are complementary (‘the Canon criteria’). The expression ‘inter alia’ shows that the enumeration of those factors is purely indicative and that there may be other relevant factors in addition to or instead of them, as is the case here. Similarity between goods and services does not depend on any specific number of criteria that might be determined in advance and applied in all cases.


133. Second, such evidence may provide useful indications regarding the nature of the conduct in question and, consequently, its propensity to restrict <mask>. For example, those indications could consist of evidence that the dominant undertaking clearly expected, on the basis of its analysis or its knowledge of the market, that its conduct would have an anticompetitive effect, indications such as those being relevant given the dominant undertaking’s expert knowledge of the structure of the market on which it operates. Accordingly, if such an undertaking adopts a strategy with a view to excluding its competitors from the market or marginalising them, where there is evidence in support of that fact, it may logically be deduced that such conduct is capable of producing such effects.


In paragraphs 38 to 42 of the order under appeal, the General Court found that the decision relating to the 2016 internal <mask> was not based on the terms of the employment contract between SC and Eulex Kosovo, but was adopted by the selection board of the 2016 internal competition in the context of the scheme to reduce staff under the OPLAN and the Deployment Plan, and stemmed from an administrative decision to hold that competition. It followed that the decision relating to the 2016 internal competition was separable from the contract.


In that regard, the fee for the rights of use for radio frequencies which Member States may introduce must be objectively justified, transparent, non-discriminatory and proportionate in relation to its intended purpose and take into account, inter alia, the objectives which are the promotion of <mask> and efficient use of radio frequencies (see, to that effect, judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 46).


(State aid — Aviation sector — Aid granted by Italy in favour of Sardinian airports — Decision declaring the aid partly compatible and partly incompatible with the internal market — Imputability to the State — Beneficiaries — Advantage for co-contracting airlines — Market economy operator principle — Effect on trade between Member States — Adverse effect on <mask> — Recovery — Legitimate expectations — Obligation to state reasons)


Ineffectiveness is the most effective way to restore <mask> and to create new business opportunities for those economic operators which have been deprived illegally of their opportunity to compete. Direct awards within the meaning of this Directive should include all contract awards made without prior publication of a contract notice in the Official Journal of the European Union within the meaning of Directive 2004/18/EC. This corresponds to a procedure without prior call for competition within the meaning of Directive 2004/17/EC [of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1)].


In any event, as the Advocate General indicated in essence in points 70 to 72 of his Opinion, since the concept of ‘contracting authority’ is closely linked to that of ‘central purchasing body’, as expounded in paragraphs 51 to 58 of this judgment, central purchasing bodies cannot be regarded as offering services on a market open to <mask> by private undertakings.


In the context of the complaints relating to the ‘criterion relating to the maximisation of the total proceeds for all assets’, the appellant submits, first, that the General Court’s analysis is vitiated by an error of law because, given that the aid in question was used to set up a conglomerate of business units, it was necessary to require separate offers for each of the business units making up the Nürburgring assets. This was the only way of eliminating the distortion of <mask> caused by the payment of the aid measures. The appellant further contends that the judgment under appeal is vitiated by an inadequate statement of reasons on this point.


As is apparent from the case-law cited above concerning the manner of determining whether an agreement has an anticompetitive object, the examination to be conducted for that purpose necessarily involves an analysis of contextual elements of the agreement in question.   Indeed, as has repeatedly been stated, the object of an agreement must be assessed not in the abstract but in the circumstances of the individual case, having regard to all relevant factors.   However, any alleged positive benefits or effects of an agreement are undeniably contextual elements which must be assessed when examining whether the object of that agreement is the restriction of <mask>.


In the second place, as regards the Commission’s decision to continue the examination of the copy-images of the hard drives of the computers in question at its premises in Brussels, it must be noted that it is indeed apparent from both the wording and the scheme of Article 20 of Regulation No 1/2003 that an inspection must begin and, in principle, continue, as stated in Article 20(1) of that regulation, in the premises ‘of undertakings and associations of undertakings’, and that is why, first, Article 20(2)(a) of that regulation authorises the Commission to ‘enter any premises, land and means of transport’ of those undertakings and associations of undertakings, and, second, Article 20(3) of that regulation requires the Commission, in good time before the inspection, to give notice to the <mask> authority of the Member State ‘in whose territory the inspection is to be conducted’. That is also the reason why, in the present case, the inspection decision required Prysmian to submit to an inspection ‘in all [its] premises’ and those of its subsidiaries.


Lastly, a broad interpretation of the obligation to define the maximum estimated value or quantity covered by the framework agreement could also, first, render redundant the rule laid down in the third subparagraph of Article 33(2) of Directive 2014/24, under which contracts based on a framework agreement may under no circumstances entail substantial modifications to the terms laid down in that framework agreement, and, second, constitute improper use or use intended to prevent, restrict or distort <mask>, as referred to in recital 61 of the directive.


However, in the absence of any clarifications from the referring court regarding the date on which the contracting authority chose the type of procedure it intended to follow and definitively decided whether or not there was an obligation to conduct a prior call for <mask> for the award of the public contract in question, it cannot be determined whether the provisions of Directive 2014/24 are inapplicable on the ground that the period for transposition of that directive expired after that date (see, to that effect, judgments of 27 October 2016, Hörmann Reisen, C‑292/15, EU:C:2016:817, paragraphs 31 and 32, and of 28 February 2018, MA.T.I. SUD and Duemme SGR, C‑523/16 and C‑536/16, EU:C:2018:122, paragraph 36), it being noted that the content of Articles 2 and 46 of Directive 2004/18 was reproduced in Directive 2014/24.


I should also point out that whereas Article 20, as an exception to the general regime for public procurement procedures under Directive 2014/24, should be given a strict interpretation, this principle of interpretation, in my view, would logically apply to the size of the carve-out from ordinary procurement procedures in terms of the part of the market covered (not at issue in the present case and not subject, in any event, to any explicit limitations in Directive 2014/24 to which a strict or narrow interpretation of the carve-out could apply) and to the depth of the carve-out in terms of the scope of the rules from which the carved-out procurement procedures are exempted. It should not apply in such a way as to require the widest possible circle of permitted participants for any given Article 20 reserved procurement procedure. Once a portion of the public procurement market has been segregated from the normal market and set aside for economic operators which are presumed to be uncompetitive due to the significant societal benefits they provide, I see no real benefit to the principles of market economy, <mask> or equal treatment from an insistence that the circle of permitted participants (presumed to be uncompetitive) be defined as broadly as possible. From a market economy perspective, it is – in my view – the size of the carve-out that matters, whereas the delineation of the circle of beneficiaries should be seen as an issue – and an instrument – of social and employment policy that is subject to the Member States’ broad discretion.


The full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in paragraph 1 of that provision would be put at risk if it were not open to any individual to claim damages for loss caused to him or her by a contract or by conduct liable to restrict or distort <mask> (judgments of 20 September 2001, Courage and Crehan, C‑453/99, EU:C:2001:465, paragraph 26, and of 14 March 2019, Skanska Industrial Solutions and Others, C‑724/17, EU:C:2019:204, paragraph 25).


For that reason, ‘even if the applicant devotes part of its revenues to the funding of audiovisual products which require specific support, the normal play of <mask>, now open on an EEA scale, provides it with opportunities which the relevant clauses denied it as long as Paramount intended to require that they be respected’ (paragraph 57 of the judgment under appeal).


‘Is Article 10[(c) and (d)(i), (ii) and (v)] of [Directive 2014/24] compatible with the principle of equal treatment, whether or not read in conjunction with the principle of subsidiarity and with Articles 49 and 56 [TFEU], since the services mentioned therein are excluded from the application of the procurement rules in the aforementioned directive which nevertheless guarantee full <mask> and free movement in the procurement of services by public authorities?’


116. In order to ascertain whether that tax scheme conferred an advantage on the coordination centres, the Court of Justice considered it necessary, in the passage cited by the General Court in paragraph 142 of the judgment under appeal, to compare that regime with the ordinary tax system, under which the taxable income of any undertaking carrying on its activities in conditions of free <mask> represented the difference between its income and its outgoings. (66) Accordingly, the Court had concluded that the effect of the exclusion of staff costs and financial charges, which made a major contribution to enabling the coordination centres to earn revenue, from the expenditure which serves to determine the taxable income of those centres ‘[was] that the transfer prices d[id] not resemble those which would [have been] charged in conditions of free competition’. (67)


Apart from the fact that, as the applicant itself states, the likelihood of obtaining clearance was high, a refusal by the <mask> authorities would not have led to the termination of the transaction. The price for TMSC was irreversibly paid by the applicant to Toshiba, which was able to enter it in its accounts in good time. It is therefore irrelevant whether the applicant is the ultimate acquirer of TMSC or whether it should have sold it to a third party purchaser of its choice.


That court stated that the right to conclude an in-house transaction, provided for in Article 10(5) of the Law on Public Procurement, in the version in force from 1 July 2014 to 1 July 2017, cannot be an exception to the prohibitions on undermining <mask> between economic operators, on granting privileges to one economic operator, and discriminating against others, as laid down in Article 4(2) of the Law on Competition. The contested contract, according to that court, was unlawful, on the grounds, in particular, that it entailed a reduction in the quantity of services ordered from Irgita and, by concluding an in-house transaction, with no objective need, the contracting authority had granted to the undertaking that it controlled privileges liable to distort the conditions of competition between economic operators in the market for the maintenance of wooded areas in the city of Kaunas.


The national courts must ensure that the exercise of the right to prevent the extraction or the reutilisation of the whole or a substantial part of the contents of a database does not result in an abuse of a dominant position, within the meaning of Article 102 TFEU or of national <mask> law, of the maker of that database on the market concerned or on a secondary market.


Last, and in response to Question 5, it must be observed that, where the parties to that agreement rely on its pro-competitive effects, those effects must, as elements of the context of that agreement, be duly taken into account for the purpose of its characterisation as a ‘restriction by object’, as recalled in paragraph 67 of the present judgment and in point 158 of the Opinion of the Advocate General, in so far as they are capable of calling into question the overall assessment of whether the concerted practice concerned revealed a sufficient degree of harm to <mask> and, consequently, of whether it should be characterised as a ‘restriction by object’.