Datasets:

ngarneau

/

link_prediction

like 0

69. As already stated in paragraph 57 above, Regulation No 1972/2003 aims to avoid abnormal patterns of trade disrupting the common organisation of markets. The regulation does not intend to penalise speculative conduct on the part of operators but, first, to prevent, by a system of deterrent charges, stocks from being built up for speculative purposes and, second, to neutralise the economic advantages anticipated by those holding them (see, by analogy, Case C‑179/00 Weidacher [2002] ECR I‑501, paragraphs 22, 28 and 42).

38. In the present case, the relevant date in order to determine whether the provisions of Directive 92/50 should have been applied is not the actual date on which the public contract at issue was awarded, and it is not necessary to resolve the issue of whether the municipality of Mödling’s holding of the whole of the capital in AbfallgmbH on the date on which the public service contract was awarded was sufficient to establish that that local authority exercised over AbfallgmbH a control similar to that which it exercises over its own departments. Even though it is true that for reasons of legal certainty it is, in general, appropriate to consider the contracting authority’s possible obligation to arrange a public call for tenders in the light of the circumstances prevailing on the date on which the public contract at issue is awarded, the particular circumstances of this case require the events which took place subsequently to be taken into account.

24. Again, according to settled case-law, such distinctiveness can be assessed only by reference, first, to the goods or services in respect of which registration is sought and, second, to the relevant public’s perception of that sign ( Procter & Gamble v OHIM , paragraph 33; Eurohypo v OHIM , paragraph 67; and Audi v OHIM , paragraph 34).

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

80. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, to this effect, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 58; Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 55 and 56; Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 61; and British American Tobacco (Investments) and Imperial Tobacco , paragraph 123). That is so, in particular, in the field of the common transport policy (see, to this effect, in particular, Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf [1997] ECR I-4475, paragraph 23, and Joined Cases C‑27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, paragraph 63).

26. It must be observed that the distribution to the public is characterised by a series of acts going, at the very least, from the conclusion of a contract of sale to the performance thereof by delivery to a member of the public. Thus, in the context of a cross-border sale, acts giving rise to a ‘distribution to the public’ under Article 4(1) of Directive 2001/29 may take place in a number of Member States. In such a context, such a transaction may infringe on the exclusive right to authorise or prohibit any forms of distribution to the public in a number of Member States.

39 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court's jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance (see Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and the order in Case C-422/97 P Sateba v Commission [1998] ECR I-4913, paragraph 30).

17 THAT PART OF THE FIRST SUBMISSION CANNOT BE UPHELD . AS THE APPLICANT ITSELF ADMITS , THE COMMISSION FOLLOWED THE PROCEDURE LAID DOWN BY THE RELEVANT COMMUNITY RULES . IT IS ALSO NOT IN DISPUTE THAT THAT PROCEDURE ENABLED THE APPLICANT TO STATE IN FULL ITS ARGUMENT CONCERNING THE SCIENTIFIC NATURE OF THE COMPUTERS IN QUESTION IN THE FILE LODGED WITH THE BELGIAN AUTHORITIES AND THAT THE FILE WAS MADE AVAILABLE BOTH TO THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND TO THE COMMISSION . ( B ) INFRINGEMENT OF THE COMMUNITY RULES DEFINING THE SCIENTIFIC NATURE OF AN INSTRUMENT OR APPARATUS

11 It is because of that difficulty in particular that the competent Community institutions must be recognized as enjoying a discretion in relation to the stages in which harmonization is to take place, having regard to the particular nature of the field subject to coordination, as the Court of Justice has, moreover, already ruled in relation to harmonizing directives adopted on the basis of other provisions of the Treaty (see the judgment in Case 37/83, REWE-Zentrale v Landwirtschaftskammer Rheinland, [1984] ECR 1229, paragraph 20).

46 In order to analyse the functionality of a sign for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94, which concerns only signs which consist of the shape of the actual goods, the essential characteristics of a shape must be assessed in the light of the technical function of the actual goods concerned (see, to that effect, judgment of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 72).

48 Furthermore, as the Advocate General stated in point 55 of her Opinion, it is necessary to avoid strategies which may be designed to circumvent the obligations laid down in Directive 2001/42 by splitting measures, thereby reducing the practical effect of that directive (see, to that effect, judgment of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 30 and the case-law cited).

44. Information, before concluding a contract, on the terms of the contract and the consequences of concluding it is of fundamental importance for a consumer. It is on the basis of that information in particular that he decides whether he wishes to be bound by the terms previously drawn up by the seller or supplier.

43 In that respect, it has already been held that the provisions of the NCRF, in particular Article 9(1) of the Framework Directive, Article 5(1) of the Authorisation Directive and Article 4(1) of the Competition Directive, preclude national measures which have the effect of freezing the structures of the national market and protecting the position of national operators already active on that market, by preventing or restricting the access of new operators to that market, unless those measures are justified by objectives of general interest and structured on the basis of objective, transparent, non-discriminatory and proportionate criteria (see, to that effect, judgment of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraphs 95 to 107).

53. By contrast, the objective criteria which form the basis of the concepts of ‘supply of goods effected by a taxable person acting as such’ and ‘economic activity’ are not met where tax is evaded by the taxable person himself (see Case C‑255/02 Halifax and Others [2006] ECR I‑0000, paragraph 59).

27. It must be observed that, although Articles 5 and 6 of Decision 2009/934 do not relate to amending the list referred to in Article 26(1)(a) of the Europol Decision (‘the list’) and could not therefore validly be used as legal basis for the contested decision, the reference to those articles in the citations of that decision is in any event a purely formal defect at the most, in so far as that reference had no effect on the content of the decision or the procedure for its adoption (see, to that effect, United Kingdom v Council , C‑81/13, EU:C:2014:2449, paragraphs 65 to 67).

43 DE LA MEME FACON , UN JUSTICIABLE NE PEUT SE VOIR OPPOSER PAR UNE AUTORITE NATIONALE DES DISPOSITIONS LEGISLATIVES OU ADMINISTRATIVES QUI NE SERAIENT PAS CONFORMES A UNE OBLIGATION INCONDITIONNELLE ET SUFFISAMMENT PRECISE DE LA DIRECTIVE .

45 Furthermore, the restrictive effects of that legislation cannot be considered to be too indirect or too uncertain for it to be possible to regard that legislation, in accordance with the Court’s case-law stemming from, inter alia, the judgments of 7 March 1990 in Krantz (C‑69/88, EU:C:1990:97, paragraphs 10 and 11), and of 13 October 1993 in CMC Motorradcenter (C‑93/92, EU:C:1993:838, paragraphs 10 to 12), as not constituting a restriction within the meaning of Article 35 TFEU.

11 Furthermore, the possibility that nationals of other Member States would hesitate to sell goods on instalment terms to purchasers in the Member State concerned because such goods would be liable to seizure by the collector of taxes if the purchasers failed to discharge their Netherlands tax debts is too uncertain and indirect to warrant the conclusion that a national provision authorizing such seizure is liable to hinder trade between Member States .

56. The Court has held in particular that the creation of a grouping of municipalities and the taking over by the latter of certain competences of municipalities forming part of that grouping constitutes a rearrangement of the exercise of public powers and cannot therefore fall within Directive 77/187 (see Henke , paragraphs 16 and 17), while holding in other cases that the transfer of staff carrying out activities of an economic nature within a public administration falls within that directive (see, in particular, Hidalgo and Others , paragraph 24; Collino and Chiappero , paragraph 32).

25. It must, however, be examined whether that restriction on the free movement of capital is capable of being justified having regard to the provisions of the EC Treaty.

48. Further, it must be recalled, first, that the mechanism introduced by Regulation No 44/2001 to resolve situations of lis pendens is objective and automatic (see, by analogy, judgment in Gantner Electronic , C‑111/01, EU:C:2003:257, paragraph 30) and is based on the chronological order in which the courts concerned were seised (see, to that effect, judgments in Weber , C‑438/12, EU:C:2014:212, paragraph 52 and the case-law cited, and, by analogy, A , C‑489/14, EU:C:2015:654, paragraph 30).

18 It is not open to a Member State to prevent the marketing in its territory of articles of precious metal hallmarked in the Member State of exportation by an independent body, on the ground that in its contention it is only action by the competent body in the State of importation which can ensure that the hallmark functions as a guarantee.

16. The purpose of the pre-litigation procedure laid down in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission (judgment in Case 293/85 Commission v Belgium [1988] ECR 305, paragraph 13; order in Commission v Spain , cited above, paragraph 16, and judgment in Case C-1/00 Commission v France [2001] ECR I-9989, paragraph 53).

51. As regards the first factor, it should be noted that, although a ceiling certainly contributes to the application of the principle of solidarity, especially where the balance of financing is borne by all undertakings in the same category (see, to that effect, Cisal , paragraph 39), the fact that there is no ceiling cannot, alone, have the effect of removing from a scheme that has all the abovementioned features its characteristic of solidarity.

35 As the Court has consistently held (see, in particular, Case 70/80 Vigier v Bundesversicherungsanstalt für Angestellte [1981] ECR 229, paragraph 15; Case C-251/89 Athanasopoulos and Others v Bundesanstalt für Arbeit [1991] ECR I-2797, paragraph 28; and Joined Cases C-88/95, C-102/95 and C-103/95 Martínez Losada and Others v Instituto Nacional de Empleo and Instituto Nacional de la Seguridad Social [1997] ECR I-869, paragraph 21), the fact that rules have not been mentioned in the declaration made by a Member State is not conclusive in this regard and is therefore not of itself proof that those rules do not come within the scope of the provision in question.

38. Ensuite, la notion de «restriction» au sens des articles 43 CE et 49 CE porte sur les mesures qui interdisent, gênent ou rendent moins attrayant l’exercice de la liberté d’établissement ou de la libre prestation des services (arrêts du 13 décembre 2007, Commission/Italie, C‑465/05, Rec. p. I‑11091, point 17, et du 28 avril 2009, Commission/Italie, C‑518/06, non encore publié au Recueil, point 62).

20 The Court has consistently held that investment by the public authorities in the capital of undertakings, in whatever form, may constitute State aid where the conditions set out in Article 92 are fulfilled (Case C-305/89, cited above, paragraph 18).

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

28. It should be recalled, at the outset, that while Article 73 of Regulation No 1408/71 provides that a worker subject to the legislation of a Member State is entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State as if they were residing in that State, that provision, albeit a general rule governing family benefits, is not however an absolute rule (see judgments in Schwemmer , EU:C:2010:605, paragraphs 41 and 42, and Wiering , C‑347/12, EU:C:2014:300, paragraph 40).

42. However, whilst that Article 73 constitutes a general rule in the matter of family benefits, it is not an absolute rule (see Dodl and Oberhollenzer , paragraph 49).

30. Such is clearly the case as far as customs duties and charges having equivalent effect are concerned, the latter being any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense (see, in particular, Case C-347/95 UCAL [1997] ECR I‑4911, paragraph 18, and Case C‑517/04 Koornstra [2006] ECR I‑0000, paragraph 15).

15 IN OTHER WORDS, DISREGARDING THE CONCEPTS USED BY FRENCH LEGISLATION AND PRACTICE, THE SUPPLEMENTARY MECHANICAL REPRODUCTION FEE MAY THUS BE ANALYSED AS CONSTITUTING PART OF THE PAYMENT FOR AN AUTHOR' S RIGHTS OVER THE PUBLIC PERFORMANCE OF A RECORDED MUSICAL WORK . MOREOVER, THE AMOUNT OF THAT ROYALTY, LIKE THAT OF THE PERFORMANCE FEE STRICTLY SO CALLED, IS CALCULATED ON THE BASIS OF THE DISCOTHEQUE' S TURNOVER AND NOT THE NUMBER OF RECORDS BOUGHT OR PLAYED .

22. It should be noted that the Commission has a broad discretion to define the subject-matter of tariff headings, but that it is not authorised to alter the subject-matter of the tariff headings which have been defined on the basis of the Harmonised System (Case C-267/94 France v Commission [1995] ECR I-4845, paragraphs 19 and 20, and Case C-309/98 Holz Geenen [2000] ECR I-1975, paragraph 13).

38 In reviewing the legality of acts under Article 173 of the Treaty, the Court of Justice and the Court of First Instance have jurisdiction in actions brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or of any rule of law relating to its application, or misuse of powers. Article 174 of the EC Treaty (now Article 231 EC) provides that, if the action is well founded, the act concerned must be declared void. The Court of Justice and the Court of First Instance cannot under any circumstances substitute their own reasoning for that of the author of the contested act.

36. In Kondova , which concerned the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, concluded and approved on behalf of the Community by Decision 94/908/ECSC, EC, Euratom of the Council and the Commission of 19 December 1994 (OJ 1994 L 358, p. 1; ‘the EC-Bulgaria Association Agreement’), the Court held that if Bulgarian nationals were allowed to apply at any time for establishment in the host Member State, notwithstanding a previous infringement of its national immigration legislation, such nationals might be encouraged to remain illegally within the territory of that State and not to submit to the national system of control until the substantive requirements under that legislation had been satisfied (see Kondova , paragraph 77).

39. It is settled case-law in that regard that, given their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions (Case C-149/96 Portugal v Council [1999] ECR I-8395, paragraph 47; order of 2 May 2001 in Case C-307/99 OGT Fruchthandelsgesellschaft [2001] ECR I-3159, paragraph 24; Joined Cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, paragraph 93; Case C-76/00 P Petrotub and Republica v Council [2003] ECR I-79, paragraph 53 and Case C-93/02 P Biret International v Council [2003] ECR I-10497, paragraph 52).

40. The sui generis nature of the employment relationship under national law is of no consequence as regards whether or not a person is a worker for the purposes of EU law (see Kiiski , paragraph 26 and the case-law cited). Provided that a person meets the conditions specified in paragraph 39 above, the nature of that person’s legal relationship with the other party to the employment relationship has no bearing on the application of Directive 92/85 (see, by analogy, in the context of freedom of movement for workers, Case 344/87 Bettray [1989] ECR 1621, paragraph 16, and Case C‑357/89 Raulin [1992] ECR I‑1027, paragraph 10).

39. It is in order to take account of those different criteria that Article 19 of Regulation No 1768/92 made transitional provision for different relevant dates.

49. Notwithstanding the discretion which Member States have pursuant to Article 5 of that directive, legislation which does not incorporate the principle of recognition of documents issued by other Member States which certify that a vehicle has passed a roadworthiness test, as laid down in Article 3(2) of that directive, cannot be validated on the basis of that directive and must for that reason be assessed in the light of Article 34 TFEU (see, to that effect, Case C-297/05 Commission v Netherlands , paragraphs 67 to 71, and Case C-170/07 Commission v Poland , paragraphs 36 to 42).

17 As the Court has held, a prohibition against importing certain products into a Member State is contrary to Article 30 where the aim of such a prohibition may be attained by appropriate labelling of the products concerned which would provide the consumer with the information he needs and enable him to make his choice in full knowledge of the facts ( judgments of 9 December 1981 in Case 193/80 Commission v Italy (( 1981 )) ECR 3019, and of 12 March 1987 in Case 178/84 Commission v Germany (( 1987 )) ECR 1227 ).

78 An element is essential within the meaning of the second sentence of the second subparagraph of Article 290(1) TFEU in particular if, in order to be adopted, it requires political choices falling within the responsibilities of the EU legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments, or if it means that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the EU legislature is required (see, to that effect, judgment of 5 September 2012, Parliament v Council, C‑355/10, EU:C:2012:516, paragraphs 65, 76 and 77).

15 IT FOLLOWS THAT THE PROVISIONS OF THE TREATY CONCERNING THE FREE MOVEMENT OF WORKERS AND PARTICULARLY ARTICLE 48 CANNOT BE APPLIED TO SITUATIONS WHICH ARE WHOLLY INTERNAL TO A MEMBER STATE , IN OTHER WORDS WHERE THERE IS NO FACTOR CONNECTING THEM TO ANY OF THE SITUATIONS ENVISAGED BY COMMUNITY LAW .

41 First of all, the Commission has not denied that the applicant is individually concerned. Having regard to the circumstances of the case, the Court considers that only the question whether the contested decision is of direct concern to the applicant need be examined.

24. Next, as Rohm Semiconductor and the European Commission submit, in order to ensure legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and their properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, judgments in Peacock , C‑339/98, EU:C:2000:573, paragraph 9; Codirex Expeditie , C‑400/06, EU:C:2007:519, paragraph 16 and the case-law cited; and Sysmex Europe , C‑480/13, EU:C:2014:2097, paragraph 29).

46. The Court has consistently held that where a capital item is used both for business and for private purposes the taxpayer has the choice, for the purposes of VAT, of (i) allocating that item wholly to the assets of his business, (ii) retaining it wholly within his private assets, thereby excluding it entirely from the system of VAT, or (iii) – as in the case before the national court – integrating it into his business only to the extent to which it is actually used for business purposes (see, to that effect, Case C‑415/98 Bakcsi [2001] ECR I‑1831, paragraphs 24 to 34, and Case C‑269/00 Seeling [2003] ECR I‑4101, paragraphs 40 and 41).

21 A SPECIAL SYSTEM OF NATIONAL RULES RELATING TO THE COLLECTION OF COMMUNITY CHARGES AND DUES WHICH RESTRICTS THE POWERS GRANTED TO THE NATIONAL AUTHORITY TO ENSURE THE COLLECTION OF THOSE CHARGES AS COMPARED WITH THE POWERS GRANTED TO THE SAME AUTHORITY IN REGARD TO NATIONAL CHARGES OR DUES OF THE SAME KIND IS THEREFORE NOT IN ACCORDANCE WITH COMMUNITY LAW .

45. It is also apparent from settled case-law that the global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see, inter alia, SABEL , paragraph 23; Lloyd Schuhfabrik Meyer , paragraph 25; Medion , paragraph 28; OHIM v Shaker , paragraph 35; and Case C‑206/04 P Mülhens v OHIM [2006] ECR I‑2717, paragraph 19).

19. That global assessment must, as regards the visual, aural or conceptual similarity of the marks in question, be based on the overall impression created by those marks, bearing in mind, in particular, their distinctive and dominant components (see, in particular, in respect of Directive 89/104, SABEL , paragraph 23, and Lloyd Schuhfabrik Meyer , paragraph 25).

18 That argument cannot be upheld. The fact that a worker' s earnings do not cover all his needs cannot prevent him from being a member of the working population. It appears from the Court' s case-law that the fact that his employment yields an income lower than the minimum required for subsistence (see Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraphs 15 and 16) or normally does not exceed 18 hours a week (see Case C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraphs 7 and 17) or 12 hours a week (see Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741, paragraphs 2 and 16) or even 10 hours a week (see Case 171/88 Rinner-Kuehn [1989] ECR 2743, paragraph 16) does not prevent the person in such employment from being regarded as a worker within the meaning of Article 48 (the Levin and Kempf cases) or Article 119 of the EEC Treaty (the Rinner-Kuehn case) or for the purposes of Directive 79/7 (the Ruzius-Wilbrink case).

34. Next, it should be borne in mind that, while being bound by the principle of proportionality, the Community legislature enjoys a wide discretionary power in matters concerning the common agricultural policy, corresponding to the political responsibilities given to it by Articles 34 EC to 37 EC. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretionary power (see, to that effect, Jippes and Others , paragraph 80).

54. According to settled case-law, indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Case C‑411/96 Boyle and Others [1998] ECR I‑6401, paragraph 76, and Case C‑333/97 Lewen [1999] ECR I‑7243, paragraph 34).

39. Moreover, the fifteenth recital in the preamble to Directive 2001/29 states that the Directive implements the international obligations resulting from the adoption, in Geneva on 20 December 1996, under the auspices of the World Intellectual Property Organisation (‘WIPO’), of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which treaties were approved on behalf of the Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).

47. Furthermore, the legislature has laid down with particular strictness that shapes necessary to obtain a technical result are unsuitable for registration as trade marks, since it has excluded the grounds for refusal listed in Article 7(1)(e) of Regulation No 40/94 from the scope of the exception under Article 7(3). If follows, therefore, from Article 7(3) of the regulation that, even if a shape of goods which is necessary to obtain a technical result has become distinctive in consequence of the use which has been made of it, it is prohibited from being registered as a trade mark (see by analogy, in relation to Article 3(3) of Directive 89/104, which is essentially identical to Article 7(3) of Regulation No 40/94, Philips , paragraph 57, and Case C-371/06 Benetton Group [2007] ECR I-7709, paragraphs 25 to 27).

20 Apart from the fact that the manufacturer has no contractual relationship with the sub-buyer and undertakes no contractual obligation towards that buyer, whose identity and domicile may, quite reasonably, be unknown to him, it appears that in the great majority of Contracting States the liability of a manufacturer towards a sub-buyer for defects in the goods sold is not regarded as being of a contractual nature.

34. Within the framework of the cooperation between the Court and national courts and tribunals established by Article 234 EC, it is solely for the national court to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. The Court can refuse a request submitted by a national court only where it is quite obvious that the ruling sought by that court on the interpretation of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is general or hypothetical (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraphs 59 to 61, Case C-369/95 Somalfruit and Camar [1997] ECR I-6619, paragraphs 40 and 41, and Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20).

90. In those circumstances, the obligation to obtain a marketing authorisation for a medicinal product before being able to market the disputed product on German territory may be regarded as in accordance with the principle of proportionality only if it is actually necessary to safeguard public health.

54. None the less, as the Court has already held, the case-law concerning restrictions on the exercise of freedom of movement within the Union cannot be transposed in its entirety to movements of capital between Member States and non-member countries, since such movements take place in a different legal context (see A , paragraph 60, and Commission v Italy , paragraph 69).

12 IT APPEARS, CONSEQUENTLY, THAT THE DELIVERY OF THE DOCUMENT PRODUCED BY THE APPLICANT IN SUPPORT OF ITS APPLICATION CANNOT BE REGARDED AS THE DISCOVERY OF A NEW FACT WITHIN THE MEANING OF ARTICLE 38 OF THE STATUTE .

61 Thus, such an organisation must be able to challenge, in such an action, not only a decision not to carry out an appropriate assessment of the implications for the site of the plan or project in question but also, as the case may be, the assessment carried out inasmuch as it is alleged to be vitiated by defects (see by analogy, in respect of Article 10a of Directive 85/337, judgment of 7 November 2013, Gemeinde Altrip and Others, C‑72/12, EU:C:2013:712, paragraph 37).

154. As observed by the Advocate General in point 77 of her Opinion, the protection of SPAs may not be limited to avoiding harmful human effects but must also include positive measures to preserve or improve the state of the area, as the case may be.

35. The Court has held on numerous occasions that the Treaty provisions relating to freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Joined Cases 154/87 and 155/87 Wolf and Others [1988] ECR 3897, paragraph 13; Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 94; Terhoeve , paragraph 37; Case C‑190/98 Graf [2000] ECR I‑493, paragraph 21; and Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 25).

46. Furthermore, in such circumstances, Article 51 of Directive 2004/18, which provides that the contracting authority may invite operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50 of the directive, cannot be interpreted as permitting that authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the bid.

48. In the context of Regulation No 1408/71, the concepts of benefits in kind and cash benefits must receive an autonomous Community law interpretation (see, to that effect, Case C‑466/04 Acereda Herrera [2006], ECR I‑5341, paragraphs 29 and 30). However, the Court has already held, with regard to the care insurance scheme at issue in the main proceedings, that care insurance benefits consisting in the direct payment or reimbursement of the costs of a specialised home entailed by the insured person’s reliance on care fall within the definition of benefits in kind within the meaning of Title III of Regulation No 1408/71 (see, to that effect Molenaar , cited above, paragraphs 6 and 32, and also Joined Cases C‑502/01 and C‑31/02 Gaumain-Cerri and Barth [2004] ECR I‑6483, paragraph 26), those benefits including, among other things, full in‑patient care as provided for in Paragraph 43 of SGB XI.

41. It is the responsibility of traders to make the necessary arrangements in their contractual relations in order to guard against the risks of an action for post-clearance recovery ( Pascoal & Filhos , paragraph 60).

17 As the Court held in Erpelding (above, paragraph 18), the structure and purpose of the rules indicate that they contain an exhaustive list of the situations in which reference quantities or individual quantities may be granted and that they set out precise rules as to how those quantities are to be determined. Even in the factual circumstances described by the national court in its question, none of the applicable Community provisions provides for the possibility of granting a reference quantity to producers whose period of non-marketing or conversion expired before 1 January 1983 and who did not deliver milk in 1981 or 1982.

38 On the one hand, it should be borne in mind that it is apparent from the HS explanatory note relating to heading 22.06 of the HS, which is identical to heading 2206 of the CN, that products obtained through fermentation remain classified under that heading provided that they retain the character of products classified under that heading, namely that of fermented beverages (see, to that effect, judgments of 7 May 2009 in Siebrand, C‑150/08, EU:C:2009:294, paragraph 26, and 16 December 2010 in Skoma-Lux, C‑339/09, EU:C:2010:781, paragraph 46 and the case-law cited).

36 Next, it should be noted that, according to the Court’s settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (judgment of 17 February 2016, Salutas Pharma, C‑124/15, EU:C:2016:87, paragraph 29 and the case-law cited).

47. Consequently, the answer to the third question is that Article 87 EC must be interpreted as meaning that a measure adopted by a Member State, such as the measure at issue in the main proceedings, requiring television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State does not constitute State aid in favour of the cinematographic industry of that Member State. Costs

41. In the context of an appeal it is necessary to bear in mind that the purpose of review by the Court of Justice is, primarily, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the arguments upon which the appellant relies (see, to that effect, Case C-­185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 128; Case C‑359/01 P British Sugar v Commission [2004] ECR I‑4933, paragraph 47; and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 244).

56. It should be noted in that regard that a prohibition on the use of a product in the territory of a Member State has a considerable influence on the behaviour of consumers, which, in its turn, affects the access of that product to the market of that Member State.

22 In that regard, it must be stated that it is clear from paragraphs 30 to 61 of the judgment of 7 June 2016 in Ghezelbash (C‑63/15) that Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, provides an asylum applicant with an effective remedy against a transfer decision made in respect of him, which may, inter alia, concern the examination of the application of that regulation and which may therefore result in a Member State’s responsibility being called into question, even where there are no systemic deficiencies in the asylum process or in the reception conditions for asylum applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.

13 That power to raise of its own motion a question of Community law presupposes that the national court considers either that Community law must be applied and, if necessary, national law disapplied, or that national law must be interpreted in a way that conforms with Community law.

34. The right reserved to national law to specify the benefits payable by the guarantee institution is conditional upon observance of fundamental rights, which include inter alia the general principle of equality and non-discrimination. That principle requires that comparable situations should not be treated differently unless such difference in treatment is objectively justified ( Rodríguez Caballero , paragraphs 29 to 32).

19 According to the terms of the transaction which involves the initial purchase of the voucher, that voucher, by its nature, is no more than a document evidencing the obligation assumed by Argos to accept the voucher, instead of money, at its face value (see, to that effect, Boots Company, cited above, paragraph 21).

45. In that context, the Court has already held that periods in which a Turkish national is employed under a residence permit which was issued to him only as a result of fraudulent conduct which has led to his conviction are not based on a stable situation and that such employment cannot be regarded as having been secure in view of the fact that, during the periods in question, the person concerned was not legally entitled to a residence permit (see, inter alia, Case C‑285/95 Kol [1997] ECR I‑3069, paragraph 27, and Case C‑37/98 Savas [2000] ECR I‑2927, paragraph 61).

80. Cet argument doit être rejeté. En effet, le Tribunal est seul juge de la nécessité éventuelle de compléter les éléments d’information dont il dispose sur les affaires dont il est saisi. Le caractère probant ou non des pièces de la procédure relève de son appréciation souveraine des faits, laquelle échappe au contrôle de la Cour dans le cadre du pourvoi, sauf en cas de dénaturation des éléments de preuve présentés au Tribunal ou lorsque l’inexactitude matérielle des constatations effectuées par ce dernier ressort des documents versés au dossier (arrêts Der Grüne Punkt – Duales System Deutschland/Commission, C‑385/07 P, EU:C:2009:456, point 163, et Deltafina/Commission, C‑578/11 P, EU:C:2014:1742, point 67). Or, dans le cadre du présent pourvoi, l’EMA n’a allégué aucune dénaturation des éléments de preuve présentés au Tribunal ni aucune inexactitude matérielle des constatations effectuées par le Tribunal qui ressortirait des documents versés au dossier.

49 According to settled case-law, the appropriate assessment of the implications for the site that must be carried out pursuant to Article 6(3) implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field (see, to that effect, judgments in Commission v France, C‑241/08, EU:C:2010:114, paragraph 69; Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 99, and Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraphs 112 and 113).

40. Il y a lieu de rappeler, à cet égard, qu’il résulte de la jurisprudence constante de la Cour que les conditions dans lesquelles un État membre est tenu de réparer les dommages causés aux particuliers par des violations du droit de l’Union qui lui sont imputables sont au nombre de trois, à savoir que la règle de droit violée ait pour objet de conférer des droits aux particuliers, que la violation soit suffisamment caractérisée et qu’il existe un lien de causalité direct entre la violation de l’obligation qui incombe à l’État et le dommage subi par les personnes lésées (voir arrêts du 5 mars 1996, Brasserie du pêcheur et Factortame, C‑46/93 et C‑48/93, Rec. p. I-1029, point 51; du 4 juillet 2000, Haim, C-424/97, Rec. p. I-5123, point 36, ainsi que du 24 mars 2009, Danske Slagterier, C‑445/06, Rec. p. I‑2119, point 20).

26. To that end, the Court may extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the legislation and the principles of European Union law that require interpretation in view of the subject-matter of the dispute in the main proceedings (see Case C‑249/11 Byankov EU:C:2012:608, paragraph 58).

50. In this respect, it must be observed, first, that the relationship between a public authority which is a contracting authority and its own departments is governed by considerations and requirements proper to the pursuit of objectives in the public interest. Any private capital investment in an undertaking, on the other hand, follows considerations proper to private interests and pursues objectives of a different kind.

47. It must be remembered in that regard that that fundamental right constitutes a general principle of EU law, as currently expressed in Article 47 of the Charter, which is the equivalent under EU law of Article 6(1) of the ECHR (see, to that effect, inter alia, judgments in Chalkor v Commission , C‑386/10 P, EU:C:2011:815, paragraph 52 and the case-law cited; Telefónica and Telefónica de España v Commission , C‑295/12 P, EU:C:2014:2062, paragraph 40; and CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 43).

61. En outre, une opération de valorisation n’est complète que si elle a pour conséquence que la substance en question a acquis les mêmes propriétés et caractéristiques qu’une matière première et est utilisable dans les mêmes conditions de précaution pour l’environnement (voir arrêts ARCO Chemie Nederland e.a., précité, points 94 et 96, ainsi que Palin Granit, point 46).

54 The Court has also ruled that, while the procedure provided for in Articles 92 and 93 of the Treaty leaves a wide discretion to the Commission to come to a decision on the compatibility of a system of State aid with the requirements of the common market, it is clear from the general scheme of the Treaty that that procedure must never produce a result which is contrary to the specific provisions of the Treaty concerning, for example, internal taxation (Commission v Italy, cited above, paragraph 11).

30. It should however be noted that the obligation to provide insurance cover against civil liability for damage caused to third parties by motor vehicles is distinct from the extent of the compensation to be afforded to them on the basis of the civil liability of the insured person. Whereas the former is defined and guaranteed by European Union legislation, the latter is, essentially, governed by national law ( Marques Almeida , paragraph 28 and the case‑law cited).

29 On the contrary, the effect of the case-law cited in paragraph 25 of this judgment is that the institutions and agencies of the Union are relieved of any obligation to apply the principle of equal treatment to third countries, in order to maintain their internal freedom of action in terms of policy. Accordingly, the Court has stated, in general terms, that a difference in treatment of third countries is not contrary to EU law, emphasising that there is no obligation to treat third countries equally (see, to that effect, judgments of 28 October 1982, Faust v Commission, 52/81, EU:C:1982:369, paragraphs 25 and 27; of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraph 56, and of 10 March 1998, T. Port, C‑364/95 and C‑365/95, EU:C:1998:95, paragraph 76).

48 Legislation of a Member State, such as that at issue in the main proceedings, which imposes a precondition for entitlement to paid annual leave which has the effect of preventing certain workers from any such entitlement not only negates an individual right expressly granted by Directive 93/104 but is also contrary to its objective.

47. The Council must properly explain, by reference to the nature and content of the basic instrument to be implemented, why exception is being made to the rule that, under the system established by the Treaty, when measures implementing a basic instrument need to be taken at Community level, it is the Commission which, in the normal course of events, is responsible for exercising that power ( Commission v Council , paragraph 51).

40. It is apparent from recital 12 in the preamble to Directive 2000/43 that the EU legislature considered that, in order to ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin, specific action in the field of discrimination based on racial or ethnic origin should in particular cover areas such as those listed in Article 3(1) of that directive (see judgment in Runevič-Vardyn and Wardyn , C‑391/09, EU:C:2011:291, paragraph 41).

87. This concept of ‘objective reasons’ in clause 5(1)(a) of the Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (judgment in Kücük , EU:C:2012:39, paragraph 27 and the case-law cited).

27. The concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the FTW Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State ( Angelidaki and Others , paragraph 96 and case-law cited).

23 Thirdly, it should be borne in mind that the Court has held that Article 85(1) of the Treaty and Article 86 of the EC Treaty (now Article 82 EC) produce direct effects in relations between individuals and create rights for the individuals concerned which the national courts must safeguard (judgments in Case 127/73 BRT and SABAM [1974] ECR 51, paragraph 16, (BRT I) and Case C-282/95 P Guérin Automobiles v Commission [1997] ECR I-1503, paragraph 39).

40 It follows that the appointing authority may go on to a subsequent stage of the recruitment procedure, even where there are one or more candidates who satisfy all the conditions and requirements set out in the vacancy notice for the post to be filled.

66 In that regard it must be recalled that, according to settled case-law, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category (judgments of 26 January 1999, Terhoeve, C‑18/95, EU:C:1999:22, paragraph 57; of 22 June 2011, Landtová, C‑399/09, EU:C:2011:415, paragraph 51; and of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 46). Disadvantaged persons must therefore be placed in the same position as persons enjoying the advantage concerned (judgment of 11 April 2013, Soukupová, C‑401/11, EU:C:2013:223, paragraph 35).

6 Those requirements are of particular importance in the field of competition, which is characterized by complex factual and legal situations.

30. That being so, it is settled case-law that, if questions have been improperly formulated or if they go beyond the scope of the powers conferred on the Court by Article 267 TFEU, the Court is free to extract from all the information provided by the referring court and, in particular, from the statement of grounds in the order for reference the elements of EU law which, having regard to the subject-matter of the dispute, require interpretation (see, inter alia, Case C‑384/08 Attanasio Group [2010] ECR I‑2055, paragraph 18 and the case-law cited). To that end, the Court may have to reformulate the questions referred to it (see, inter alia, Attanasio Group , paragraph 19; Case C‑243/09 Fuß [2010] ECR I‑9849, paragraph 39 and the case-law cited; and Case C‑249/11 Byankov [2012] ECR, paragraph 57 and the case-law cited).

12 QUE L ' ABOLITION DES BARRIERES DOUANIERES NE VISE DONC PAS EXCLUSIVEMENT A ELIMINER LEUR CARACTERE PROTECTEUR , LE TRAITE AYANT AU CONTRAIRE ENTENDU DONNER A LA REGLE DE L ' ELIMINATION DES DROITS DE DOUANE ET DES TAXES D ' EFFET EQUIVALENT UNE PORTEE ET UN EFFET GENERAUX EN VUE D ' ASSURER LA LIBRE CIRCULATION DES MARCHANDISES ;

19. Furthermore, it is settled case-law that Article 49 EC confers rights not only on the provider of services but also on the recipient (see Case C-294/97 Eurowings Luftverkehr [1999] ECR I-7447, paragraph 34; Case C-290/04 FKP Scorpio Konzertproduktionen [2006] ECR I-9461, paragraph 32; and Case C-233/09 Dijkman and Dijkman-Lavaleije [2010] ECR I-6645, paragraph 24).

41. On the other hand, it is incompatible with the rules governing the right of deduction under Directive 2006/112 to impose a penalty, in the form of refusal of that right, on a taxable person who did not know, and could not have known, that the transaction concerned was connected with fraud committed by the supplier or that another transaction forming part of the chain of supply, downstream or upstream of the transaction carried out by the taxable person, was vitiated by VAT fraud (see, to that effect, Optigen and Others , paragraphs 52 and 55; Kittel and Recolta Recycling , paragraphs 45, 46 and 60; and Mahagében and Dávid , paragraph 47).

57. It is settled case-law that the prohibition of quantitative restrictions and measures having equivalent effect laid down by Article 28 EC applies not only to national measures but also to measures adopted by the Community institutions (see in particular, to that effect, Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15; Case C-51/93 Meyhui [1994] ECR I-3879, paragraph 11; and Case C-114/96 Kieffer and Thill [1997] ECR I-3629, paragraph 27).

60. Par ailleurs, il importe que, lorsque des incertitudes subsistent quant à l’existence ou à l’importance de risques pour la santé des personnes, l’État membre puisse prendre des mesures de protection sans avoir à attendre que la réalité de ces risques soit pleinement démontrée. En particulier, un État membre peut prendre les mesures qui réduisent, autant que possible un risque pour la santé, y compris plus précisément un risque pour l’approvisionnement en médicaments de la population sûr et de qualité (voir arrêts précités Apothekerkammer des Saarlandes e.a., point 30, ainsi que Blanco Pérez et Chao Gómez, point 74).

40. However, some of their provisions may necessitate, for their implementation, the adoption of measures of application by the Member States ( Handlbauer , paragraph 26 and the case-law cited).

51. Consequently, the concept of the value of sales referred to in point 13 of those Guidelines encompasses the sales made on the market concerned by the infringement in the EEA, and it is not necessary to determine whether those sales were genuinely affected by that infringement, since the proportion of the overall turnover deriving from the sale of goods in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect, judgments in Team Relocations and Others v Commission , C‑444/11 P, EU:C:2013:464, paragraphs 75 to 78; Guardian Industries and Guardian Europe v Commission , C‑580/12 P, EU:C:2014:2363, paragraphs 57 to 59; Dole Food and Dole Fresh Fruit Europe v Commission , C‑286/13 P, EU:C:2015:184, paragraphs 148 and 149; and LG Display and LG Display Taiwan v Commission , C‑227/14 P, EU:C:2015:258, paragraphs 53 to 58 and 64).

48. Since the second plea is directed against a superabundant ground for the judgment under appeal, it must be rejected as nugatory (see, inter alia, Case C-244/91 P Pincherle v Commission [1993] ECR I-6965, paragraphs 25 and 31, and the order of 12 December 1996 in Case C-49/96 P Progoulis v Commission [1996] ECR I-6803, paragraph 27).

46. With regard to judicial review of the conditions referred to in the previous paragraph, the European Union legislature must be allowed a broad discretion in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue ( S.P.C.M. and Others , paragraph 42 and case-law there cited).

33 In the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (see, inter alia, judgments of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 39; of 30 May 2013, Worten, C‑342/12, EU:C:2013:355, paragraph 30; and of 19 September 2013, Betriu Montull, C‑5/12, EU:C:2013:571, paragraph 40).

12 QUE L ' ABOLITION DES BARRIERES DOUANIERES NE VISE DONC PAS EXCLUSIVEMENT A ELIMINER LEUR CARACTERE PROTECTEUR , LE TRAITE AYANT AU CONTRAIRE ENTENDU DONNER A LA REGLE DE L ' ELIMINATION DES DROITS DE DOUANE ET DES TAXES D ' EFFET EQUIVALENT UNE PORTEE ET UN EFFET GENERAUX EN VUE D ' ASSURER LA LIBRE CIRCULATION DES MARCHANDISES ;

38 According to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, where the factual and legal situations are often complex (see in particular Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraphs 6 and 7, Case C-284/95 Safety High-Tech v S. & T. [1998] ECR I-4301, paragraphs 69 and 70, and Case C-341/95 Bettati [1998] ECR I-4355, paragraphs 67 and 68).

48. Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

33 According to settled case-law, that is the position not only where tax evasion has been carried out by the taxable person himself but also where a taxable person knew, or should have known, that, by the transaction concerned, he was participating in a transaction involving evasion of VAT carried out by the supplier or by another trader acting upstream or downstream in the supply chain (see, regarding the right of deduction, judgment of 6 December 2012, Bonik, C‑285/11, EU:C:2012:774, paragraphs 38 to 40, regarding the right of exemption for an intra-Community supply, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 54, and, regarding VAT reimbursement, judgment of 18 December 2014, Schoenimport Italmoda Mariano Previti and Others, C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraphs 49 and 50).

35. Article 234 EC provides that the Court has jurisdiction to give preliminary rulings concerning the validity and interpretation of acts of the Community institutions and the European Central Bank.

55 For those reasons, it must be accepted that the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken. In that respect, the Court has already taken into consideration the fact that the body in question could not take the contested decision without taking account of the requirements of the public authorities (see, in particular, Van der Kooy, paragraph 37) or the fact that, apart from factors of an organic nature which linked the public undertakings to the State, those undertakings, through the intermediary of which aid had been granted, had to take account of directives issued by a Comitato Interministeriale per la Programmazione Economica (CIPE) (Case C-303/88 Italy v Commission, cited above, paragraphs 11 and 12; Case C-305/89 Italy v Commission, cited above, paragraphs 13 and 14).

9 IN THAT RESPECT THE DANISH LAW IN QUESTION DOES NOT EXHIBIT THE CLARITY AND PRECISION NECESSARY FOR THE PROTECTION OF THE WORKERS CONCERNED . EVEN ACCEPTING THE ASSERTIONS OF THE DANISH GOVERNMENT THAT THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN , IN THE BROAD SENSE REQUIRED BY THE DIRECTIVE , IS IMPLEMENTED IN COLLECTIVE AGREEMENTS , IT HAS NOT BEEN SHOWN THAT THE SAME IMPLEMENTATION OF THAT PRINCIPLE IS GUARANTEED FOR WORKERS WHOSE RIGHTS ARE NOT DEFINED IN SUCH AGREEMENTS .

27. Il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 20 novembre 2003, Commission/France, C‑296/01, Rec. p. I‑13909, point 43, et du 3 février 2011, Commission/Belgique, C-391/10, point 8).

43. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraph 23, and Case C-323/01 Commission v Italy [2002] ECR I-4711, paragraph 8).

36. According to the Court’s settled case-law, a call for tenders, under the directives relating to public procurement, is not compulsory, even if the contracting party is an entity legally distinct from the contracting authority, where two conditions are met. First, the public authority, which is a contracting authority, must exercise over the distinct entity in question a control which is similar to that which it exercises over its own departments and, second, that entity must carry out the essential part of its activities with the local authority or authorities which control it (see Teckal , cited above, paragraph 50; Case C‑26/03 Stadt Halle and RPL Lochau [2005] ECR I‑1, paragraph 49; Case C‑84/03 Commission v Spain [2005] ECR I‑139, paragraph 38; Case C‑29/04 Commission v Austria [2005] ECR I‑9705, paragraph 34; Case C‑340/04 Carbotermo and Consorzio Alisei [2006] ECR I‑4137, paragraph 33; and Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 55).

25 The court of the place where the publisher of the defamatory publication is established must therefore have jurisdiction to hear the action for damages for all the harm caused by the unlawful act.

52. According to settled case-law, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of Article 34 TFEU (see, inter alia, Case 8/74 Dassonville [1974] ECR 837, paragraph 5, and Case C-108/09 Ker-Optika [2010] ECR I-0000, paragraph 47).

65. À cette fin, il incombe au juge de l’Union de procéder à cet examen en demandant, le cas échéant, à l’autorité compétente de l’Union de produire des informations ou des éléments de preuve, confidentiels ou non, pertinents aux fins d’un tel examen (voir arrêt Kadi II, point 120 et jurisprudence citée).

36 The Court has held that a national measure applicable to all traders active in the national territory whose actual effect is greater on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market of that Member State is covered by the prohibition laid down by Article 35 TFEU (see, to that effect, judgment of 16 December 2008 in Gysbrechts and Santurel Inter, C‑205/07, EU:C:2008:730, paragraphs 40 to 43).

66. La Commission propose l’imposition tant d’une astreinte que d’une somme forfaitaire pour les mêmes raisons que celles exposées dans l’arrêt Commission/Italie (C‑496/09, EU:C:2011:740, points 42 à 45 et 82 à 92).

58. It is important to note in that regard that, if such an interpretation were accepted, any transfer imposed upon such workers could be removed by the public authority concerned from the scope of Directive 77/187 simply by invoking the fact that the transfer forms part of a staff reorganisation. Important categories of workers carrying out economic activities within the meaning of the Court’s case-law would thus risk being deprived of the protection provided for by Directive 77/187. That result would be difficult to reconcile both with the wording of Article 2 of the latter, according to which the transferor and the transferee may be any physical or legal person having the capacity of employer, and with the need, bearing in mind the objective of social protection pursued by the directive, to interpret exceptions to its application strictly (see, in relation to Directive 2001/23, Case C‑561/07 Commission v Italy [2009] ECR I‑4959, paragraph 30 and case-law cited).

48 It is therefore not possible to accept an interpretation of Article 5(3) of the Brussels Convention according to which application of that provision is conditional on the actual occurrence of damage. Furthermore, it would be inconsistent to require that an action to prevent behaviour considered to be unlawful, such as that brought in the main proceedings, whose principal aim is precisely to prevent damage, may be brought only after that damage has occurred.

25 It follows that EU nationals working for an EU institution or body in a Member State other than their Member State of origin, such as the appellants in the main proceedings, may not be refused the rights and social advantages which Article 45 TFEU affords them (see judgments of 15 March 1989, Echternach and Moritz, 389/87 and 390/87, EU:C:1989:130, paragraph 12, and of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 16 and the case-law cited).

12 It follows, in particular, that a child of such a worker who is a national of a Member State may not be refused the rights and privileges which Article 48 of the Treaty and Regulation No 1612/68 afford him .

28 Furthermore, it is settled case-law that the transmission, and broadcasting, of television signals comes within the rules of the Treaty relating to the provision of services (see, in particular, Case 155/73 Sacchi [1974] ECR 409, paragraph 6; Case 52/79 Debauve and Others [1980] ECR 833, paragraph 8; Case C-260/89 ERT [1991] ECR I-2925, paragraphs 20 to 25; Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 38; Case C-211/91 Commission v Belgium [1992] ECR I-6757, paragraph 5, and Case C-23/93 TV10 [1994] ECR I-4795, paragraphs 13 and 16).

67. Having regard to this duty to ensure accordance with Article 118 TFEU, the enhanced cooperation in question must establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights.

15 As the Court held in the judgment in Case 189/87 Kalfelis v Schroeder [1988] ECR 5565, paragraphs 15 and 16, the concept of "matters relating to tort, delict or quasi-delict" serves as a criterion for defining the scope of one of the rules concerning the special jurisdictions available to the plaintiff. Regard being had to the objectives and general scheme of the Convention, it is important that, in order to ensure as far as possible the equality and uniformity of the rights and obligations arising out of the Convention for the Contracting States and the persons concerned, that concept should not be interpreted as a simple reference to the national law of one or other of the States concerned. Accordingly, the concept of "matters relating to tort, delict or quasi-delict" must be regarded as an independent concept which is to be interpreted, for the application of the Convention, principally by reference to the scheme and objectives of the Convention in order to ensure that the latter is given full effect.

15 With respect to the first part of the question, it must be observed that the concept of "matters relating to tort, delict or quasi-delict" serves as a criterion for defining the scope of one of the rules concerning the special jurisdictions available to the plaintiff . As the Court held with respect to the expression "matters relating to a contract" used in Article 5 ( 1 ) ( see the judgments of 22 March 1983 in Case 34/82 Peters v ZNAV (( 1983 )) ECR 987, and of 8 March 1988 in Case 9/87 SPRL Arcado and SA Haviland (( 1988 )) ECR 1539 ), having regard to the objectives and general scheme of the Convention, it is important that, in order to ensure as far as possible the equality and uniformity of the rights and obligations arising out of the Convention for the Contracting States and the persons concerned, that concept should not be interpreted simply as referring to the national law of one or other of the States concerned .

68. The Court has already held that the provisions of Directive 95/46, in so far as they govern the processing of personal data liable to infringe fundamental freedoms, in particular the right to privacy, must necessarily be interpreted in the light of fundamental rights, which, according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures and which are now set out in the Charter (see, in particular, Case C‑274/99 P Connolly v Commission EU:C:2001:127, paragraph 37, and Österreichischer Rundfunk and Others EU:C:2003:294, paragraph 68).

31. It follows that the applicability of the private investor test to a public intervention depends, not on the way in which the advantage was conferred, but on the classification of the intervention as a decision adopted by a shareholder of the undertaking in question.

77. It is for national courts to ascertain in the circumstances of each particular case, and bearing in mind the consumers to which the advertising is addressed, whether the latter may be misleading (see, in particular, Case C-373/90 X [1992] ECR I‑131, paragraphs 15 and 16).

57. It must, moreover, be recalled that, as regards measures adopted on the basis of provisions relating to the Common Foreign and Security Policy, such as the contested measures, it is the individual nature of those measures which, in accordance with the second paragraph of Article 275 TFEU and the fourth paragraph of Article 263 TFEU, permits access to the Courts of the European Union.

63. It must be recalled in that connection that, according to the Court’s settled case-law, it is for the national courts and administrative bodies to apply European Union law in its entirety and to protect rights which the latter confers on individuals, disapplying, if necessary, any contrary provision of domestic law (see, to that effect, Costanzo , paragraph 33, and Case C‑208/05 ITC [2007] ECR I‑181, paragraphs 68 and 69 and the case-law cited).

37. The Council maintains that it took into account, during the legislative procedure, studies carried out in 2004 by the International Council on Clean Transportation (ICCT) which demonstrated that the use of MMT is damaging to human health and to the proper functioning of emissions control systems and the Declaration of Brescia on the prevention of the neurotoxicity of metals of 17 and 18 June 2006 which recommends, inter alia, that the addition of organic manganese compounds to fuels should be halted.

76. According to settled case-law, the principle of effective judicial protection is a general principle of Community law and it is for the courts of the Member States to ensure judicial protection of an individual’s rights under Community law (see, to that effect, Case C‑432/05 Unibet [2007] ECR I-0000, paragraphs 37 and 38, and the case-law cited). It is by applying that principle that the Court has acknowledged that it falls within the jurisdiction of the national courts to ensure that the Directive is applied and that the rights which individuals derive from it are protected by deciding upon, inter alia, the place of normal residence (see, to that effect, Louloudakis , paragraphs 57 and 70).

91 The Court' s review must be limited in that way in particular if, in establishing a common organization of the market, the Council has to reconcile divergent interests and thus select options within the context of the policy choices which are its own responsibility.

45. According to settled case-law, the principle of legal certainty requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (see judgments in France Télécom v Commission , C‑81/10 P, EU:C:2011:811, paragraph 100 and the case-law cited, and in LVK — 56 , C‑643/11, EU:C:2013:55, paragraph 51).

31. Lastly, if, by means of an anti-suit injunction, the Tribunale di Siracusa were prevented from examining itself the preliminary issue of the validity or the applicability of the arbitration agreement, a party could avoid the proceedings merely by relying on that agreement and the applicant, which considers that the agreement is void, inoperative or incapable of being performed, would thus be barred from access to the court before which it brought proceedings under Article 5(3) of Regulation No 44/2001 and would therefore be deprived of a form of judicial protection to which it is entitled.

41. It is common ground that legislation of a Member State such as that at issue in the main proceedings under which exclusive rights to organise and promote games of chance are conferred on a single operator, and whereby all other operators, including operators established in another Member State, are prohibited from offering over the internet services falling within the scope of that regime in the territory of the first Member State, constitutes a restriction on the freedom to provide services guaranteed by Article 49 EC (see, to that effect, Case C‑203/08 Sporting Exchange [2010] ECR I‑0000, paragraphs 22 and 24 and the case-law cited).

47. Ainsi, l’exercice d’un emploi par un ressortissant turc sous le couvert d’une autorisation de séjour provisoire qui n’est valable que dans l’attente d’une décision définitive sur son droit de séjour n’est pas susceptible d’être qualifié de «régulier» (voir, en ce sens, arrêt du 29 septembre 2011, Unal, C‑187/10, Rec. p. I‑9045, point 47).

69. As regards, second, the European Union law at issue, it should be observed from the outset that Directive 2004/38 is based on Articles 12 EC, 18 EC, 40 EC, 44 EC and 52 EC. That directive, far from pursuing a purely economic objective, aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty, and it aims in particular to strengthen that right (see Case C‑145/09 Tsakouridis [2010] ECR I‑0000, paragraph 23).

25. Full harmonisation in the field of non-life insurance rates precluding any national measure liable to have effects on rates cannot be presumed in the absence of a clearly expressed intention to this effect on the part of the Community legislature.

21. As a preliminary point, it must be borne in mind that, in accordance with the case-law of the Court, retired persons such as Ms Hirvonen, who leave the Member State in which they have spent all their working life to reside in another Member State may benefit, where their situation is not covered by the freedom of movement guaranteed by Article 45 TFEU, from the right to freedom of movement as a citizen of the European Union under Article 21 TFEU (see, to that effect, judgment in Turpeinen , C‑520/04, EU:C:2006:703, paragraphs 16 to 23).

100. En effet, premièrement, conformément à la jurisprudence rappelée au point 90 du présent arrêt, le Tribunal a bien analysé la gravité de l’infraction telle qu’elle avait été commise par Gosselin ainsi que la pertinence, aux fins de l’octroi éventuel du bénéfice de circonstances atténuantes, du comportement individuellement adopté par celle-ci dans l’entente. Il convient, en particulier, de relever à cet égard que, tout en constatant, au point 182 de l’arrêt attaqué, que le point 29 des lignes directrices pour le calcul des amendes ne prévoyait pas expressément que le comportement dont cette société se prévalait puisse constituer une circonstance atténuante, le Tribunal a cependant apprécié si les circonstances particulières de l’espèce n’appelaient pas néanmoins une réduction de l’amende infligée à cette dernière, se conformant ainsi pleinement à la jurisprudence susmentionnée.

33. The Court has thus held that Articles 2(1) of the Second Directive and 1 of the Third Directive preclude national rules which allow the disproportionate refusal or restriction of the compensation to be made available to a passenger by means of compulsory insurance against civil liability in respect of the use of motor vehicles solely on the basis of his contribution to the occurrence of that damage ( Candolin and Others , paragraph 35, and Farrell , paragraph 35).

23. À cet égard, il convient de rappeler que, selon une jurisprudence constante de la Cour, la destination du produit peut constituer un critère objectif de classement pour autant qu’elle est inhérente audit produit, l’inhérence devant pouvoir s’apprécier en fonction des caractéristiques et des propriétés objectives de celui-ci, telles que définies par le libellé de la position de la NC et des notes de section ou de chapitre, conformément à la jurisprudence citée au point précédent du présent arrêt (voir arrêts Medion et Canon Deutschland, C‑208/06 et C‑209/06, EU:C:2007:553, point 37; British Sky Broadcasting Group et Pace, C‑288/09 et C‑289/09, EU:C:2011:248, point 76, et Nutricia, C‑267/13, EU:C:2014:277, point 21).

40 The Court has held many times that the reservations contained in Article 48 of the Treaty and Article 56 of the EC Treaty (now, after amendment, Article 46 EC) permit Member States to adopt, with respect to nationals of other Member States, and in particular on the grounds of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the territory or to deny them access thereto (see Case 41/74 Van Duyn [1974] ECR 1337, paragraphs 22 and 23, Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 7, Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28, and Case C-348/96 Calfa [1999] ECR I-11, paragraph 20).

43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.

32. While those concepts are not defined in the Treaty, it is apparent from the list in heading I and the explanatory notes to it, whose indicative value has already been acknowledged by the Court, that the concept of direct investment concerns investments by natural or legal persons which serve to establish or maintain lasting and direct links between the person providing the capital and the company to which that capital is made available in order to carry out an economic activity (see, to that effect, Case C-157/05 Holböck [2007] ECR I-4051, paragraphs 34 and 35 and the case-law cited).

8 IT IS APPROPRIATE TO RECALL , IN THE FIRST PLACE , THAT ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT , ANY PECUNIARY CHARGE , HOWEVER SMALL AND WHATEVER ITS DESIGNATION AND MODE OF APPLICATION , WHICH IS IMPOSED UNILATERALLY ON THE GOODS BY REASON OF THE FACT THAT THEY CROSS A FRONTIER AND WHICH IS NOT A CUSTOMS DUTY IN THE STRICT SENSE , CONSTITUTES A CHARGE HAVING EQUIVALENT EFFECT WITHIN THE MEANING OF ARTICLES 9 , 12 , 13 AND 16 OF THE TREATY , EVEN IF IT IS NOT LEVIED BY THE STATE . THE POSITION IS DIFFERENT ONLY IF THE CHARGE IN QUESTION IS THE CONSIDERATION FOR A SERVICE ACTUALLY RENDERED TO THE IMPORTER AND IS OF AN AMOUNT COMMENSURATE WITH THAT SERVICE , WHEN THE CHARGE CONCERNED , AS IN THIS CASE , IS PAYABLE EXCLUSIVELY ON IMPORTED PRODUCTS .

48 The direct application of a regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law, unless the regulation in question leaves it to the Member States themselves to adopt the necessary legislative, regulatory, administrative and financial measures to ensure the effective application of the provisions of that regulation (judgment of 14 June 2012, C‑606/10, Association nationale d’assistance aux frontières pour les étrangers, C‑606/10, EU:C:2012:384, paragraph 72).

103 The arguments relating to limitation in respect of the PVC II decision, alleged by Elf Atochem to constitute a third difference as compared with the PVC I decision, are clearly unrelated to any new objection, since they do not concern any conduct other than that in respect of which the undertakings had already submitted observations.

24. Next, it must be borne in mind that, in accordance with settled case-law, the first paragraph of Article 7 of Decision No 1/80 has direct effect, so that Turkish nationals to whom that provision applies have the right to rely on it directly before the courts of the Member States in order to have rules of national law which are contrary to it disapplied (see, to that effect, inter alia, Case C‑351/95 Kadiman [1997] ECR I‑2133, paragraph 28; Case C-303/08 Bozkurt [2010] ECR I‑0000, paragraph 31; and Case C‑484/07 Pehlivan [2011] ECR I‑0000, paragraph 39).

28 Like Article 6(1) (see in particular Case C-192/89 Sevince [1990] ECR I-3461, paragraph 26) and the second paragraph of Article 7 (see Case C-355/93 Eroglu v Land Baden-Württemberg [1994] ECR I-5113, paragraph 17), the first paragraph of Article 7 of Decision No 1/80 thus has direct effect in the Member States, so that Turkish nationals fulfilling the conditions which it lays down may directly rely on the rights conferred on them by that provision.

42 It must be stated at the outset that, although the Spanish Government alleges that the contested regulation adversely affects the legitimate expectations of the Member States as well, in all essential respects its arguments refer to breach of the legitimate expectations of the traders concerned. Nevertheless, despite the doubts expressed by the Council, there is nothing to prevent a Member State from claiming in an action for annulment that an act of the institutions frustrates the legitimate expectations of particular individuals (see, in this respect, Case 278/84 Germany v Commission [1987] ECR 1, paragraphs 34 to 36; Case 203/86 Spain v Council [1988] ECR 4563, paragraphs 17 to 20, and Case C-169/95 Spain v Council [1997] ECR I-135, paragraphs 49 to 54).

33. Consequently, the classification of a transaction as an intra-Community supply or acquisition cannot be made contingent on observance of a specific time period during which the transport of the goods supplied or acquired must be commenced or completed. However, in order for such a classification to be made and the place of acquisition determined, a temporal and material link must be established between the supply of the goods in question and the transport of those goods, as well as continuity in the course of the transaction.

73 Thus, it is important to indicate that, when carrying out an intra-Community transaction concerning a new means of transport, the vendor cannot rely solely on the intention expressed by the purchaser to transport the goods to another Member State for the purposes of their final use. On the contrary, and as the Advocate General noted in point 63 of his Opinion, the vendor must ensure that the purchaser’s expressed intention is supported by objective evidence (see, by analogy, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 47).

30. It follows that the concept of ‘taxable person’ is defined widely, on the basis of the factual circumstances. On the other hand, it is not apparent from Article 9(1) that the status of taxable person depends on any authorisation or licence granted by the authorities for the exercise of an economic activity.

52. It must be added that the Court has recognised the legitimate interest which the Member States have in preventing conduct which is liable to undermine the right to exercise the powers of taxation which are vested in them. In this connection, where a double taxation convention has given the Member State in which the permanent establishment is situated the power to tax the profits of that establishment, to give the principal company the right to elect to have the losses of that permanent establishment taken into account in the Member State in which it has its seat or in another Member State would seriously undermine a balanced allocation of the power to impose taxes between the Member States concerned (see, to that effect, Oy AA , paragraph 55).

82. Compliance with a provision of a directive which exhibits those characteristics must thus be essentially ensured when it is applied in practice to a specific situation, regardless of whether it is transposed into national law in precisely the same words.

22. Next, regarding the concept of a ‘transfer, whether for consideration or not or as a contribution to a company, of a totality of assets or part thereof’, referred to in the first sentence of Article 5(8) of the Sixth Directive, the Court has observed that this constitutes an independent concept of EU law which must be given a uniform interpretation throughout the European Union. There being no definition of that concept in the Sixth Directive, and no express reference to the law of the Member States, its meaning and scope must be identified in the light of the context of the provision and the purpose of the legislation in question (see, to that effect, Zita Modes , paragraphs 32 to 35).

54 However, if the obligation to pay the customs debt rests on the importer, a third party cannot be enriched solely because the importer has paid that debt. Nevertheless, that payment may give rise to an obligation on the part of the exporter or another person towards the importer, legally distinct from the importer's customs obligation, under which the latter may recover the amount which he has paid to the customs authorities.

32. Au demeurant, il ressort également de la jurisprudence de la Cour que la cessation forcée du contrat de travail constitue, conformément à une jurisprudence constante de la Cour, une condition d’emploi et de travail au sens de l’article 3, paragraphe 1, sous c), de cette directive (arrêt Prigge e.a., C‑447/09, EU:C:2011:573, point 41).

29. In the present case, as stated at paragraph 7 of this judgment, the annex to the decision to grant refers to the appellant’s designation as the authority responsible for the execution of the ERDF project.

80. Thus, unlike other fundamental rights enshrined in that Convention, such as the right to life or the prohibition of torture and inhuman or degrading treatment or punishment, which admit of no restriction, neither the freedom of expression nor the freedom of assembly guaranteed by the ECHR appears to be absolute but must be viewed in relation to its social purpose. Consequently, the exercise of those rights may be restricted, provided that the restrictions in fact correspond to objectives of general interest and do not, taking account of the aim of the restrictions, constitute disproportionate and unacceptable interference, impairing the very substance of the rights guaranteed (see, to that effect, Case C-62/90 Commission vGermany [1992] ECR I-2575, paragraph 23, and Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18).

75. It must be recalled that the third subparagraph of Article 3(1) of the basic regulation provides: ‘To establish whether or not a name has become generic, account shall be taken of all factors, in particular: – the existing situation in the Member State in which the name originates and in areas of consumption, – the existing situation in other Member States, – the relevant national or Community laws.’

80. Secondly, it must be observed that the Court has consistently held that a Member State breaches the prohibitions laid down by Article 86(1) EC in conjunction with Article 82 EC if it adopts any law, regulation or administrative provision that creates a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights cannot avoid abusing its dominant position (see to that effect, in particular, Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 20; Case C-242/95 GT-Link [1997] ECR I-4449, paragraphs 33 and 34; and Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraph 61).

49. L’imposition d’une somme forfaitaire doit, dans chaque cas d’espèce, demeurer fonction de l’ensemble des éléments pertinents ayant trait tant aux caractéristiques du manquement constaté qu’à l’attitude propre à l’État membre concerné par la procédure initiée sur le fondement de l’article 260 TFUE. À cet égard, celui-ci investit la Cour d’un large pouvoir d’appréciation afin de décider de l’imposition ou non d’une telle sanction et de déterminer, le cas échéant, son montant (arrêt Commission/Espagne, C‑184/11, EU:C:2014:316, point 60 et jurisprudence citée).

85. In addition, the Court has repeatedly held that the exception in the first paragraph of Article 45 EC must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority ( Reyners , paragraph 45; Thijssen , paragraph 8; Commission v Spain , paragraph 35; Servizi Ausiliari Dottori Commercialisti , paragraph 46; Commission v Germany , paragraph 38; and Commission v Portugal , paragraph 36).

12 Furthermore, legislation of the kind at issue in the main proceedings does not contravene the principle of proportionality. The reservation to opticians of the sale of contact lenses and related products is appropriate for the purpose of ensuring the protection of public health. There is no evidence in the file to suggest that such legislation goes beyond what is necessary to achieve that objective.

29. In this context, the Court has held that, in the absence of fraud or abuse and subject to adjustments which may be made in accordance with the conditions laid down in Article 185 of Directive 2006/112, the right to deduct, once it has arisen, is retained even if the economic activity envisaged does not give rise to taxed transactions (see INZO , paragraphs 20 and 21; Ghent Coal Terminal , paragraphs 19 to 23; Schloßstrasse , paragraph 42; Case C‑98/98 Midland Bank [2000] ECR I‑4177, paragraph 22; and Fini H , paragraph 22).

9. Article 15(1) of that treaty states: ‘Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public.’

29. According to settled case-law, EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, Case C‑367/96 Kefalas and Others [1998] ECR I‑2843, paragraph 20; Case C‑373/97 Diamantis [2000] ECR I‑1705, paragraph 33; and Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 68).

47. That circumstance is reflected, inter alia, in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented.

38. Accordingly, Member States have a significant discretion to determine what constitutes ‘sufficient interest’ or ‘impairment of a right’ (see, to that effect, judgments in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen , C‑115/09, EU:C:2011:289, paragraph 55, and Gemeinde Altrip and Others , C‑72/12, EU:C:2013:712, paragraph 50).

55. It should be noted in that regard that, taken as a whole, Article 10a of Directive 85/337 leaves the Member States a significant discretion both to determine what constitutes impairment of a right and, in particular, to determine the conditions for the admissibility of actions and the bodies before which such actions may be brought.

40. Furthermore, it must be pointed out that, even in the context of Directive 77/91, Article 42 thereof cannot be considered to reflect a general principle of Community law. The Court has rejected a broad interpretation of Article 42 on the ground that it would render Article 29(4) of that directive, which relates to the conditions governing the restriction of the right of pre-emption, redundant (see, Commission v Spain , paragraphs 32 and 33).

33. To require that the issue price of new shares must not be below their market value would have the effect that, even if that price were justified by the directors’ report, the general meeting could not apply it without infringing the principle of equal treatment referred to in Article 42 of the Second Directive.

61 According to settled case-law, Article 59 of the Treaty precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Kohll, paragraph 33).

18 THE MAINTENANCE OF THE WORKER' S RELATIONSHIP WITH SUCH AN EMPLOYER FOR THE ENTIRE DURATION OF THE EMPLOYMENT ARISES IN PARTICULAR FROM THE FACT THAT IT IS THE EMPLOYER WHO PAYS THE SALARY AND CAN DISMISS HIM FOR ANY MISCONDUCT BY HIM IN THE PERFORMANCE OF HIS WORK WITH THE HIRING UNDERTAKING .

45. The assessment of appreciability depends on the circumstances of each individual case, in particular the nature of the agreement and practice, the nature of the products covered and the market position of the undertakings concerned. … The stronger the market position of the undertakings concerned, the more likely it is that an agreement or practice capable of affecting trade between Member States can be held to do so appreciably … … 50. … the Commission considers it appropriate to set out general principles indicating when trade is normally not capable of being appreciably affected …. When applying Article 81 [EC], the Commission will consider this standard as a negative rebuttable presumption applying to all agreements within the meaning of Article 81(1) [EC] … … 52. The Commission holds the view that in principle agreements are not capable of appreciably affecting trade between Member States when the following cumulative conditions are met: (a) The aggregate market share of the parties on any relevant market within the Community affected by the agreement does not exceed 5%, and (b) in the case of horizontal agreements, the aggregate annual Community turnover of the undertakings concerned … in the products covered by the agreement does not exceed 40 million euro. … … 53. The Commission will also hold the view that where an agreement by its very nature is capable of affecting trade between Member States, for example, because it concerns imports and exports or covers several Member States, there is a rebuttable positive presumption that such effects on trade are appreciable when the turnover of the parties in the products covered by the agreement calculated as indicated in paragraphs 52 and 54 exceeds 40 million euro. In the case of agreements that by their very nature are capable of affecting trade between Member States it can also often be presumed that such effects are appreciable when the market share of the parties exceeds the 5% threshold …. However, this presumption does not apply where the agreement covers only part of a Member State … 54. With regard to the threshold of 40 million euro … the turnover is calculated on the basis of total Community sales excluding tax during the previous financial year by the undertakings concerned, of the products covered by the agreement …. Sales between entities that form part of the same undertaking are excluded … 55. In order to apply the market share threshold, it is necessary to determine the relevant market (41). This consists of the relevant product market and the relevant geographic market. The market shares are to be calculated on the basis of sales value data or, where appropriate, purchase value data. If value data are not available, estimates based on other reliable market information, including volume data, may be used.’ 3. Footnote 41 to point 55 of the Guidelines on the effect on trade states that, when defining the relevant market, reference should be made to the Notice on the definition of the relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5) (‘the Notice on the definition of the market’). 4. The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines on the method of setting fines’) provide, under the heading ‘Basic amount of the fine’, as follows: ‘… A. Calculation of the value of sales 13. In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the [European Economic Area (EEA)]. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement (hereafter “value of sales”). … B. Determination of the basic amount of the fine 19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. … 21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales. 22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. 23. Horizontal price-fixing, market-sharing and output-limitation agreements [7], which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale. … 25. In addition, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales … in order to deter undertakings from even entering into horizontal price-fixing … agreements. … For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22. …’ 5. Footnote 2 to point 23 of the Guidelines on the method of setting fines states that such agreements include concerted practices and decisions by associations of undertakings within the meaning of Article 81 EC. 6. Under the heading ‘Adjustments to the basic amount’, the Guidelines on the method of setting fines provide as follows: ‘F. Ability to pay 35. In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’ 7. Under the heading ‘Final considerations’, point 37 of the Guidelines on the method of setting fines provides as follows: ‘Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’ II – Background to the dispute and the contested decision 8. The facts giving rise to the dispute and the contested decision, as set out in paragraphs 1 to 21 of the judgment under appeal, may be summarised as follows. 9. In the contested decision, the Commission found that the addressees of that decision – one of which was Ziegler (whose consolidated turnover in the financial year ending 31 December 2006 was EUR 244 420 326) – had participated in a cartel in the international removal services sector in Belgium by fixing prices, sharing customers and manipulating the procedure for the submission of tenders and thereby committed a single and continuous infringement of Article 81 EC, or must be held liable for such an infringement, for part or the whole of the period from October 1984 to September 2003. 10. The services concerned by the infringement include removals of goods from or to Belgium, both for natural persons and for undertakings or public institutions. In view of the fact that the international removal companies in question are all located in Belgium and that the activities of the cartel took place there, Belgium was considered to be the geographic centre of the cartel. The combined turnover of the cartel members for those international removal services was estimated by the Commission at EUR 41 million for 2002. Since the size of the sector was estimated at approximately EUR 83 million, the combined market share held by the undertakings involved was therefore considered to account for approximately 50% of the sector concerned. 11. The Commission stated in the contested decision that one of the aims of the cartel was to establish and maintain high prices and to share the market, and the cartel itself took various forms: agreements on prices, agreements on sharing the market by means of a system of false quotes known as ‘cover quotes’, and agreements on a system of financial compensation, known as ‘commissions’, for rejected offers or for not quoting at all. 12. In the contested decision, the Commission found that, between 1984 and the early 1990s, the cartel had operated, inter alia, on the basis of written price-fixing agreements, the ‘commission’ and ‘cover quote’ practices being introduced at the same time. According to that decision, as was stated in the judgment under appeal, the ‘commissions’ practice was to be treated as the indirect fixing of prices for international removal services in Belgium, since the cartel members issued invoices to each other for commissions on rejected offers or offers not made, referring to fictitious services, and the amount represented by those commissions was, moreover, invoiced to the customers. 13. As regards ‘cover quotes’, the Commission stated in the contested decision that, through the submission of such quotes, the removal company which wanted the contract ensured that the customer paying for the removal received several quotes. To that end, that company indicated to its competitors the total price that they were to quote for the planned removal, which was higher than the price quoted by the company itself. Thus the system in operation was one of fictitious quotes submitted by companies which did not intend to carry out the removal. The Commission took the view that that practice constituted a manipulation of the tendering procedure to ensure that the price quoted for a removal was higher than it would have been in a competitive environment. 14. The Commission found in the contested decision that those arrangements were in place until 2003 and that those complex activities had the same object: price-fixing and market-sharing and, thereby, the distortion of competition. 15. In the light of those factors, the Commission adopted the contested decision, Article 1 of which is worded as follows: ‘By directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders, the following undertakings have infringed Article 81(1) [EC] and Article 53(1) of the [Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3)] in the periods indicated: … (j) [Ziegler], from 4 October 1984 to 8 September 2003.’ 16. Consequently, under Article 2(l) of the contested decision, the Commission imposed a fine of EUR 9.2 million on Ziegler, calculated in accordance with the methodology set out in the Guidelines on the method of setting fines. 17. On 24 July 2009, the Commission adopted Decision C(2009) 5810 final amending the contested decision by reducing by approximately EUR 600 000 the value of the sales of another addressee of the contested decision. As that value had been taken as the basis of the calculation of the fine imposed on that addressee, the Commission reduced the amount of that fine. III – The proceedings before the General Court and the judgment under appeal 18. By application lodged at the Registry of the General Court on 3 June 2008, Ziegler brought an action for annulment of the contested decision or, in the alternative, annulment of the fine imposed on it or, in the further alternative, a substantial reduction of that fine. Ziegler also requested the General Court to order that the full administrative file be lodged at the Court Registry, pending judgment. 19. In parallel with that action, Ziegler filed an application for interim measures, seeking, inter alia, a stay of execution of Article 2 of the contested decision, in so far as it imposed a fine on it. That application was refused by order of the President of the General Court of 15 January 2009 in Case T‑199/08 R Ziegler v Commission , the appeal lodged against that decision subsequently being dismissed by order of the President of the Court of Justice of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission . 20. Ziegler relied on nine pleas in law in support of its action, namely five principal pleas, seeking annulment of the contested decision, and four pleas in the alternative, seeking the annulment or reduction of the fine. 21. By the judgment under appeal, the General Court granted in part Ziegler’s request that it order that the administrative file be lodged at the Court Registry. However, it dismissed all the pleas relied on by Ziegler and, as a consequence, rejected the action in its entirety, ordering Ziegler to pay the costs. The Court’s decision was based, inter alia, on the following considerations. 22. In its analysis of the first plea seeking annulment of the contested decision, alleging manifest errors of assessment and errors of law in the assessment of the conditions necessary for the application of Article 81(1) EC, the General Court first of all dismissed, at paragraphs 41 to 46 of the judgment under appeal, the Commission’s arguments that it was not necessary to define the relevant market in the case of obvious restrictions of competition. The General Court stated that the Commission is under an obligation to define the market in particular where it is impossible, without such a definition, to determine whether the agreement at issue is liable to affect trade between Member States and that, in the present case, Ziegler was entitled to call into question the Commission’s assessment of that condition for the application of Article 81 EC. 23. Next, at paragraphs 56 to 63 of the judgment under appeal, the General Court found that the Commission had failed to prove that the EUR 40 million threshold set out at point 53 of the Guidelines on the effect on trade had been reached. According to the General Court, it was necessary, when estimating the size of the market for the purposes of ascertaining whether there was an appreciable effect on trade between Member States, for the turnover achieved as a subcontractor to be deducted from the turnover achieved from the services in question. That court found that once the turnover achieved as a subcontractor was deducted, the EUR 40 million threshold was no longer reached. 24. Lastly, after finding, at paragraph 48 of the judgment under appeal, that the argument put forward by Ziegler by way of response, concerning the 5% market share threshold set out at point 53 of the Guidelines on the effect on trade, simply supplemented the plea calling into question the evidence of any appreciable effect on trade between Member States and was therefore admissible, the General Court went on to analyse that argument at paragraphs 64 to 74 of the judgment under appeal. It stated in that regard, inter alia, that the Commission had failed to comply with the obligation to define the relevant market, as it was required to by point 55 of those guidelines. However, it took the view that, in the circumstances of the case, the Commission had established to the requisite legal standard that the 5% market share threshold had been exceeded, since it had provided a sufficiently detailed description of the relevant sector for it to be possible to ascertain whether that threshold had been reached. It therefore held, at paragraph 72 of the judgment under appeal, that, ‘exceptionally’, the Commission was entitled to base its decision on that threshold without expressly determining the market within the meaning of point 55 of those guidelines. 25. In its analysis of the first part of the third plea seeking annulment of the contested decision, alleging breach of the obligation to state reasons with regard to the calculation of the basic amount of the fine, the General Court stated, inter alia, at paragraphs 88 to 94 of the judgment under appeal, that it was desirable for the Commission to augment its reasoning as to the calculation of fines, that the Guidelines on the method of setting fines adopted in 2006 had brought about a fundamental change in the method of setting fines and that, in those circumstances, it was no longer possible for the Commission, in principle, to state reasons only for the classification of an infringement as ‘very serious’ and to omit to justify the choice of the proportion of the value of sales taken into account. It pointed out that, in the present case, the Commission had set that percentage at 17%, the only reasons given for that choice being the ‘very serious’ nature of the infringement. In that regard, that court stated, at paragraph 93 of the judgment under appeal, that ‘[t]hat reasoning can be sufficient only where the Commission applies a percentage very close to the lower end of the scale laid down for the most serious restrictions’ and that ‘had the Commission wished to apply a higher percentage, it would have had to provide more detailed reasons’. The General Court added, at paragraph 94 of that judgment, that those considerations were also valid as regards the additional amount applied as a deterrent. 26. With regard to the fourth plea seeking annulment of the contested decision, alleging infringement of the right to fair legal process and the general principle of good administration, the General Court stated, at paragraphs 103 to 107 of the judgment under appeal, that Ziegler had not called into question the Commission’s competence, in the present case, to adopt a decision in relation to a proceeding under Article 81 EC. It also stated that the lack of objectivity allegedly shown by the Commission did not constitute an infringement of the rights of the defence capable of leading to annulment of the contested decision but must be placed in the context of the review of the assessment of the evidence or of the statement of reasons for the decision. It therefore held that the plea in question was ineffective as a plea for annulment. Nevertheless, the General Court pointed out, for the sake of completeness, that that plea was also unfounded. Indeed, in its view, the matters raised by Ziegler were not of such a kind as to demonstrate that the alleged bias of the Commission or of one of its officials was reflected in the contested decision or that the Commission was biased in investigating the case or how the conduct which certain Commission officials were accused of, even if proved, could have infringed the right to fair legal process. 27. In its analysis of the last plea, seeking annulment of or a reduction in the fine on account of exceptional circumstances, the General Court examined the arguments by which Ziegler pleaded, in essence, its inability to pay the fine and unequal treatment vis‑à‑vis another undertaking to which the contested decision was addressed. It pointed out, inter alia, at paragraphs 165 to 169 of the judgment under appeal, that point 35 of the Guidelines on the method of setting fines imposed two cumulative conditions for its application and that the Commission’s assessment – that the fact that the fine imposed on Ziegler accounted for only 3.76% of its worldwide turnover in 2006 suggested that the fine is unlikely to irretrievably jeopardise its economic viability – was abstract and took no account of the company’s specific circumstances. It therefore found that that assessment could not form a basis on which Ziegler’s application for a reduction could be rejected. However, since Ziegler did not challenge the Commission’s finding in the contested decision that the second condition, relating to the presence of a specific social and economic context, was not met, the General Court considered that the Commission was justified in rejecting Ziegler’s arguments seeking a reduction of the fine on account of its economic and financial difficulties. 28. As regards the purported infringement of the principle of equal treatment in relation to another undertaking at which the contested decision was addressed, the General Court pointed out, at paragraphs 170 and 171 of the judgment under appeal, that the Commission had also refused the request made by that other company pursuant to point 35 of the Guidelines on the method of setting fines, on account of the lack of a specific social and economic context. It also considered that while the Commission had in fact granted that company a reduction in the fine in accordance with point 37 of those guidelines, it was apparent from the contested decision that that undertaking’s position and that of Ziegler were not comparable and it was sufficient to note in that connection that the fine imposed on Ziegler was considerably below the 10% threshold of its total turnover, whereas, before it was reduced, the fine imposed on the other undertaking far exceeded that threshold. IV – Forms of order sought by the parties 29. By its appeal, Ziegler claims that the Court should: – declare the present appeal admissible and well founded; – set aside the judgment under appeal and give final judgment itself on the dispute; – grant the form of order sought at first instance and, accordingly annul the contested decision or, in the alternative, annul the fine imposed on the appellant in that decision or, in the further alternative, substantially reduce that fine; and – order the Commission to pay the costs both at first instance and on appeal. 30. In its reply, Ziegler also claims that the Commission’s request seeking the substitution of certain grounds should be rejected as inadmissible or, at the very least, unfounded. 31. The Commission contends that the Court should: – dismiss the appeal and substitute certain grounds of the judgment of the General Court; – in the alternative, dismiss the action for annulment; and – order Ziegler to pay the costs. V – The appeal 32. Ziegler relies on four grounds of appeal. A – The first ground of appeal, alleging errors of law in the assessment of the evidence of an appreciable effect on trade between Member States 33. Ziegler divides its first ground of appeal into three parts, the first concerning the obligation to define the relevant market and the second and third concerning, in essence, the 5% market share threshold set out at point 53 of the Guidelines on the method of setting fines. However, the Commission has requested that the Court first of all grant leave for the substitution of certain grounds, which, in its view, will lead to the rejection of the first ground of appeal. 1. The Commission’s request for new grounds to be substituted a) Arguments of the parties 34. First, the Commission submits that the purpose of the Guidelines on the effect on trade is not to render the standard of the requirement of proof of an appreciable effect on trade between Member States more stringent than that established by case‑law. Whereas it has a certain discretion concerning the calculation of fines, the Commission has no leeway to come to the view that a cartel which has an appreciable effect on trade between Member States might not be caught by the prohibition laid down in Article 81 EC. Therefore, the thresholds set out at points 52 and 53 of the Guidelines on the effect on trade are merely indicative. Similarly, no obligation to define the market may be inferred from point 55 of those guidelines in cases, such as those involving cartels, in which, as is clear from case‑law, such a definition is unnecessary. The grounds set out at paragraphs 64 to 74 of the judgment under appeal are therefore incorrect and should be replaced. 35. Second, the Commission is of the view that the General Court erred in law by confusing the term ‘turnover’ within the meaning of points 52 and 53 of the Guidelines on the effect on trade with the term ‘value of sales’ used in point 13 of the Guidelines on the method of setting fines, and by taking the view that turnover within the meaning of points 52 and 53 could not include the turnover achieved as sub‑contractors. Subcontracting is in fact a relevant economic activity for the purpose of determining whether trade between Member States may be regarded as being appreciably affected, even though it should not be taken into account in calculating the fine. The Commission therefore requests that new grounds be substituted for the grounds set out at paragraphs 56 to 63 of the judgment under appeal, in which the General Court concluded, incorrectly, that it had not been proven that the EUR 40 million threshold was exceeded. 36. Third, the Commission requests that new grounds be substituted for the grounds set out at paragraphs 40 to 50 of the judgment under appeal, in particular those set out at paragraph 48. It contends that the General Court was incorrect to conclude that Ziegler’s argument relating to the 5% market share threshold was admissible. It is not possible to infer that argument from the application initiating the proceedings, and it should therefore have been regarded not as supplementing a plea already raised but as a new limb of a plea and, as such, inadmissible. 37. Ziegler maintains that the requests for substitution of grounds are inadmissible, since they have no effect on the operative part of the judgment under appeal and are imprecise. They are, in any event, unfounded. 38. In first place, by establishing, in the Guidelines on the effect on trade, thresholds which are not to be found in case‑law, the Commission must have intended to limit the scope of its discretion as regards the application of the condition requiring there to be an appreciable effect on trade between Member States. It cannot therefore depart from those guidelines without providing adequate reasons. Moreover, where it chooses to apply them, as in the present case, the Commission is bound to adhere to them. 39. In second place, no support is to be found for the distinction which the Commission claims exists between the terms ‘value of sales’ and ‘turnover’ in the wording or the spirit of the provisions concerned or, a fortiori , in the case‑law. 40. In third place, Ziegler maintains that the argument presented before the General Court concerning the 5% market share threshold was admissible because it supplemented a plea claiming that there was no appreciable effect on trade between Member States. b) Findings of the Court 41. With regard to the admissibility of the requests at issue, disputed by Ziegler, it should be noted, first, that they cannot be dismissed as inadmissible on the ground that they are imprecise. For each of the requests submitted, the Commission has identified precisely the passages of the judgment under appeal which it considers to be incorrect in law, the grounds on which it considers them to be so and the grounds which, in its view, the General Court should have established if it was not to err in law, namely those which the Commission raised before it in its defence. 42. Second, according to the Court’s settled case-law, for a request for substitution of grounds to be admissible, the appellant must have an interest in bringing proceedings, in so far as the request must be capable, if successful, of procuring an advantage to the party making it. That may be the case where the request for substitution of grounds amounts to a defence to one of the applicant’s pleas (see, to that effect, Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission [2009] ECR I‑9291, paragraph 23, and the judgment of 21 December 2011 in Case C‑329/09 P Iride v Commission , paragraphs 48 to 51). 43. In the present case, with regard to the first request, concerning the grounds relating to the concept of an ‘appreciable effect on trade between Member States’ and the obligation to define the relevant market, it should be noted that if the General Court erred in law in holding that, in view of the binding nature of the Guidelines on the effect on trade, the Commission was required to define the relevant market, the first part of the first ground of appeal relied on by Ziegler would be ineffective. Indeed, Ziegler would therefore no longer be in a position to claim that the General Court incorrectly exempted the Commission from its obligation to define the market. As a consequence, the Commission has an interest in making that request, which is therefore admissible. 44. As regards the second request, concerning the grounds relating to whether or not the EUR 40 million threshold was exceeded, if it were established that the General Court, in breach of the law, had confused the term ‘value of sales’ used in the Guidelines on the method of setting fines with the term ‘turnover’ within the meaning of the Guidelines on the effect on trade and as a result inferred, incorrectly, that that threshold had not been reached, it would have to be found that it had been established that that threshold was exceeded. In that case, the second and third parts of Ziegler’s first ground of appeal, relating solely to the assessment of the 5% market share threshold, would be ineffective. It follows that the Commission also has an interest in making that request, which is therefore also admissible. 45. With regard to the third request, concerning the grounds relating to the admissibility of Ziegler’s argument on the 5% market share threshold, it is sufficient to observe, without there being any need to rule on its admissibility, that it must in any event be rejected as unfounded (see, by analogy, Case C‑233/02 France v Commission [2004] ECR I‑2759, paragraph 26).

22. By laying down the procedural rules for proceedings designed to ensure protection of the rights which individuals acquire through the direct effect of Community law, Member States must ensure that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness) (see, to that effect, Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 31 and the case-law cited). However, compliance with the limits of the power of the Member States in procedural matters has not been called into question in the dispute in the main proceedings as regards appeal proceedings.

41 Finally, it should be noted that in the absence of Community provisions, Member States are free to chose the modes of proof of the various matters defined in the directives which they transpose, provided that the effectiveness of Community law is not thereby undermined (see in particular, in that regard, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633, paragraphs 17 to 25 and 35 to 39; Case 222/82 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraphs 17 to 21; and Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECR I-389, paragraphs 49 to 51).

83. Consequently, it is for the Member State to adduce the most detailed and comprehensive evidence that its checks have been carried out and its figures are accurate and, if appropriate, that the Commission’s assertions are incorrect (judgment in Greece v Commission , EU:C:2005:103, paragraph 36).

68 The Court has also held that the meaning to be given to those words must be able to guarantee the objectives of the final paragraph of point 23(b) of that notice and, in particular, the effectiveness of the leniency programme (see, to that effect, judgment 23 April 2015 in LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 84 and the case-law cited). In that regard, as noted by the Advocate General in point 22 of his Opinion, the objective of leniency programmes is to obtain the termination of the infringement by those committing it, in order to end it quickly and completely.

37 It would be otherwise if the dismissed employee were to seek reinstatement or re-engagement. In such a case, the conditions laid down by national law would concern working conditions or the right to take up employment and would therefore fall under Directive 76/207.

105. According to settled case‑law, the Commission is not required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraphs 54 and 55, and Dansk Rørindustri and Others v Commission , paragraph 327).

19 IT IS NECESSARY TO DETERMINE WHETHER THAT DECISION CLEARLY ALTERED THE APPLICANT ' S LEGAL POSITION OR WHETHER IT WAS MERELY A PREPARATORY STEP AGAINST WHICH , IF IT WAS UNLAWFUL , THE ACTION BROUGHT AGAINST THE DECISION CONCLUDING THE PROCEDURE WOULD PROVIDE SUFFICIENT PROTECTION .

148. Lastly, it should be noted that the Commission is required, in the interests of sound administration of the rules relating to State aid, to conduct a diligent and impartial examination of the evidence at its disposal (see, inter alia, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 62).

49. It follows from the foregoing considerations that, in order to ensure that the objective of management independence of the infrastructure manager is attained, the latter must, within the charging framework established by the Member States, be given a degree of flexibility in determining the amount of charges so as to enable it to use that flexibility as a management tool.

63. Furthermore, Decree-Law No 177/92 makes provision for meeting the costs of medical care abroad solely in exceptional cases where the treatment needed for patients affiliated to the Portuguese health system is not available under that system. By its very nature, that condition will severely limit the circumstances in which such authorisation can be obtained (see, to that effect, Smits and Peerbooms , paragraph 64, and Müller-Fauré and van Riet , paragraph 42).

45 In that regard, it should be noted that while, in its initial version, the aim of Article 3 of the Framework Directive was essentially, as stated in recital 11 of that directive, to guarantee the independence and impartiality of NRAs by ensuring that regulation and operation are functionally separate, the intention of the EU legislature was, by means of Directive 2009/140 and as stated in recital 13 thereof, to strengthen the independence of NRAs in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions (see, to that effect, judgment of 28 July 2016, Autorità per le Garanzie nelle Comunicazioni, C‑240/15, EU:C:2016:608, paragraphs 32 and 34).

111 In the area of external relations, the Court has held that the Community's tasks and the objectives of the Treaty would be compromised if Member States were able to enter into international commitments containing rules capable of affecting rules adopted by the Community or of altering their scope (see Opinion 2/91, paragraph 11, and also, to that effect, the AETR judgment, paragraphs 21 and 22).

33 It is settled case-law that, where capital goods are used both for business and for private purposes, the taxpayer has the choice, for the purposes of VAT, of (i) allocating those goods wholly to the assets of his business, (ii) retaining them wholly within his private assets, thereby excluding them entirely from the system of VAT, or (iii) integrating them into his business only to the extent to which they are actually used for business purposes (judgment of 23 April 2009, Puffer, C‑460/07, EU:C:2009:254, paragraph 39 and the case-law cited).

71. That assessment is made when a public creditor grants payment facilities in respect of a debt payable to it by an undertaking, by applying, in principle, the private creditor test. That test, where applicable, is among the factors which the Commission is required to take into account for the purposes of establishing whether such aid exists (see, to that effect, Case C-342/96 Spain v Commission [1999] ECR I-2459, paragraph 46; Case C-256/97 DM Transport [1999] ECR I-3913, paragraph 24; and Commission v EDF , paragraphs 78 and 103).

43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.

31. The WTO Agreement, of which the TRIPs Agreement forms part, has been signed by the Community and subsequently approved by Decision 94/800. Therefore, according to settled case-law, the provisions of that convention now form an integral part of the Community legal order (see, inter alia, Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 36, and Case C-459/03 Commission v Ireland ECR I-4635, paragraph 82). Within the framework of that legal order the Court has jurisdiction to give preliminary rulings concerning the interpretation of that agreement (see, inter alia, Case 181/73 Haegeman v Belgium [1974] ECR 449, paragraphs 4 to 6, and Case 12/86 Demirel [1987] ECR 3719, paragraph 7).

29. It must be recalled to begin with that, under the reverse charge regime, no VAT payment takes place between the supplier and the recipient of the services, the recipient being liable, in respect of the transactions carried out, for the input VAT, while being able, in principle, to deduct that tax so that no amount is payable to the tax authorities.

27 The Court has consistently held (Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629, paragraph 21) that every national court must apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it.

32 As regards such activities, it should be noted first that Article 1(a) of the directive makes no distinction between public works contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting needs in the general interest and those which are unrelated to that task.