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32 In order to reply to the question thus reformulated, it must be borne in mind that the Court has already held that the second subparagraph of Article 1(b) of Directive 92/50 draws a distinction between needs in the general interest not having an industrial or commercial character and needs in the general interest having an industrial or commercial character (Case C-360/96 BFI Holding [1998] ECR I-6821, paragraph 36).

36 The answer to the first question must therefore be that the second subparagraph of Article 1(b) of Directive 92/50 must be interpreted as meaning that the legislature drew a distinction between needs in the general interest not having an industrial or commercial character and needs in the general interest having an industrial or commercial character. The second question

38 The second, internal, aspect is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (see, inter alia, judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 52; of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 31; and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 20).

54. Where, during the genuine residence of the Union citizen in the host Member State, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) of Directive 2004/38, family life is created or strengthened in that Member State, the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU requires that the citizen’s family life in the host Member State may continue on returning to the Member of State of which he is a national, through the grant of a derived right of residence to the family member who is a third‑country national. If no such derived right of residence were granted, that Union citizen could be discouraged from leaving the Member State of which he is a national in order to exercise his right of residence under Article 21(1) TFEU in another Member State because he is uncertain whether he will be able to continue in his Member State of origin a family life with his immediate family members which has been created or strengthened in the host Member State (see, to that effect, Eind , paragraphs 35 and 36, and Iida , paragraph 70).

70. Similarly, it has been held that, when a worker returns to the Member State of which he is a national after being gainfully employed in another Member State, a third-country national who is a member of his family has a right of residence in the Member State of which the worker is a national, even where that worker does not carry on any effective and genuine economic activities. If the third-country national did not have such a right, the worker who is a Union citizen could be discouraged from leaving the Member State of which he is a national in order to pursue gainful employment in another Member State simply because of the prospect for that worker of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification ( Eind , paragraphs 45, 35 and 36).

28. However, although direct taxation falls within their competence, the Member States must exercise that competence consistently with Community law (see Case C-265/04 Bouanich [2006] ECR I-923, paragraph 28, and Test Claimants in Class IV of the ACT Group Litigation , paragraph 36). The existence of a restriction on the freedom of establishment

51. Having regard to the general context in which the three‑month period is placed and its objective, were a decision not to be taken by the Commission within that period the Member State concerned would be prevented from implementing that aid measure and could not obtain an authorisation decision to that effect from the Commission under the procedure initiated by the latter. Such a situation would be contrary to the orderly functioning of the rules on State aid, since the Commission’s authorisation could be obtained only as a result of a new procedure initiated in accordance with the Steel Aid Code, which would delay the Commission’s decision without offering any additional safeguard to the Member State concerned (Case C-5/01 Belgium v Commission , paragraphs 58 and 59).

58. If that three-month time-limit were to be interpreted as a prescription period linked to loss of competence whose expiry prohibits the Commission from expressing a view on the compatibility with the ECSC Treaty of a planned aid measure where a decision in that regard has not been adopted by the Commission within that period, the Member State concerned would, on the one hand, be prevented from implementing that aid measure and, on the other, find it impossible to obtain an authorisation decision to that effect from the Commission under the procedure initiated by the latter. As the Advocate General pointed out in paragraph 101 of her Opinion, such a situation would be contrary to the orderly functioning of the rules on State aid.

54. In that regard, it should be noted that the internet gaming industry has not been the subject of harmonisation within the European Union. A Member State is therefore entitled to take the view that the mere fact that an operator such as the Ladbrokes companies lawfully offers services in that sector via the internet in another Member State, in which it is established and where it is in principle already subject to statutory conditions and controls on the part of the competent authorities in that State, is not a sufficient assurance that national consumers will be protected against the risks of fraud and crime, in the light of the difficulties liable to be encountered in such a context by the authorities of the Member State of establishment in assessing the professional qualities and integrity of operators (see, to that effect, Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 69).

20. It is true that under Article 60(3) of the Rules of Procedure the formation to which a case has been assigned may, at any stage of the proceedings, refer the case back to the Court in order that it may be reassigned to a formation composed of a greater number of judges, but that constitutes a measure which the formation to which the case has been assigned in principle decides on freely and of its own motion (see, to that effect, Spain v Council , C‑310/04, EU:C:2006:521, paragraph 22).

22. It must be observed that the third paragraph of Article 16 of the Statute requires the Court to sit as a Grand Chamber if a request to that effect is made by inter alia an institution of the Communities which is a party to the proceedings, whereas a referral back under Article 44(4) of the Rules of Procedure constitutes a measure which the formation to which the case has been assigned in principle decides on freely and of its own motion.

11 As the Court has consistently held (see, in particular, the judgment in Case 288/89 Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, paragraph 11), those exemptions alone can effectively be relied upon to justify national rules which are not applicable to services without distinction as regards their origin.

58. The objective of undistorted competition on those markets is also pursued by the FEU Treaty, the preamble to which underlines the need for concerted action in order to guarantee, inter alia, fair competition, the ultimate aim of that action being to protect consumers. According to the Court’s settled case‑law, consumer protection constitutes an overriding reason in the public interest (Case C‑260/04 Commission v Italy [2007] ECR I‑7083, paragraph 27; Case C‑393/05 Commission v Austria [2007] ECR I‑10195, paragraph 52; and Case C‑458/08 Commission v Portugal [2010] ECR I‑11599, paragraph 89).

89. As to whether there is any objective justification for overriding reasons in the public interest for the restriction of the freedom to provide services that arises from the national scheme at issue, which applies without distinction to any construction undertaking operating within Portuguese territory, it must be observed, first of all, that the reasons put forward by the Portuguese Republic in that regard, namely the requirement to ensure the soundness and safety of buildings and to protect the environment, the architectural heritage as well as consumers and users of buildings, indeed constitute such reasons (see also Corsten , paragraph 38, and Schnitzer , paragraph 35), and it is not necessary to determine for the purposes of the present case whether some of those reasons are, as the Portuguese Republic maintains, a matter of public policy.

17 Having regard to the central role of the relevant Member State and to the importance of the responsibilities which that State assumes in the presentation and supervision of the financing of training measures, the opportunity for it to comment before a definitive decision to reduce assistance is adopted constitutes an essential procedural requirement the disregard of which renders the contested decision void.

111. It is apparent from the case‑file that that argument did not expand on an argument raised previously, whether directly or by implication, in the original application which is closely connected to the original complaint. However, Articles 48(2) of the Rules of Procedure of the General Court provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (see, to that effect, the judgment of 12 November 2009 in Case C‑564/08 P SGL Carbon v Commission , not published in the ECR, paragraphs 20 to 34).

33. Enfin, quant à l’allégation de SGL selon laquelle les critères utilisés par la Commission pour la fixation des amendes n’étaient apparus qu’au cours de la procédure devant le Tribunal, il suffit d’observer que les éléments de calcul jugés pertinents par la Commission, à savoir la nature de l’infraction, son impact réel et la taille du marché géographique en cause, sont énoncés aux points 276 à 288 de la décision litigieuse, si bien que ces facteurs ne sauraient être considérés comme des éléments nouveaux.

21 The Court thus held in Fantask and Others, cited above, that Community law does not prevent a Member State which has not properly transposed Directive 69/335 from resisting actions for repayment of duties levied in breach thereof by relying on a limitation period under national law of five years reckoned from the date on which those duties became payable (see also Edis, paragraph 47, and Spac, paragraph 30, both cited above).

28. A common system of VAT was introduced by Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ, English Special Edition 1967 (I), p. 16); and by the Sixth Directive ( Pelzl and Others , paragraph 15, and Banca Popolare di Cremona , paragraph 20).

15 The introduction of a common system of VAT was achieved by the Second Council Directive (67/228/EEC) of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes - Structure and procedures for application of the common system of value added tax (OJ, English Special Edition 1967, p. 16, hereinafter `the Second Directive') and by the Sixth Directive.

52. On the other hand, as regards the child of both parents, it must be observed that, as is clear from the documents before the Court, this child is indeed the child of a national of a Member State who is or has been employed in the territory of another Member State, within the meaning of Article 12 of Regulation No 1612/68. However, so that the mother, as the parent who is that child’s primary carer, may have a right of residence based on that provision, the child of both parents must have entered the educational system in the host Member State (see, to that effect, Joined Cases C‑147/11 and C‑148/11 Czop and Punakova [2012] ECR I‑0000, paragraph 29).

68. It should also be noted 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 (see, inter alia , Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37).

37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).

44. A difference in treatment between non-resident and resident taxpayers, consisting in the fact that it subjects the income of non-residents to a definitive tax at the single rate of 25%, deducted at source, whilst the income of residents is taxed according to a progressive table including a tax-free allowance, is compatible with EU law provided that the single rate is not higher than that which would actually be applied to the person concerned, in accordance with the progressive table, in respect of net income increased by an amount corresponding to the tax-free allowance (see, to that effect, judgment in Gerritse , C‑234/01, EU:C:2003:340, paragraph 53 et seq.).

26. Acceptance of the proposition that the Member State may freely apply a different treatment solely by reason of the fact that a company’s registered office is situated in another Member State would deprive the rules relating to the freedom of establishment of all meaning (see, to that effect, Case 270/83 Commission v France [1986] ECR 273, paragraph 18, and Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 42).

18 IT MUST FIRST BE EMPHASIZED IN THAT REGARD THAT FREEDOM OF ESTABLISHMENT , WHICH ARTICLE 52 GRANTS TO NATIONALS OF ANOTHER MEMBER STATE AND WHICH ENTAILS THEIR RIGHT TO TAKE UP AND PURSUE ACTIVITIES AS SELF-EMPLOYED PERSONS UNDER THE CONDITIONS LAID DOWN FOR ITS OWN NATIONALS BY THE LAW OF THE COUNTRY WHERE SUCH ESTABLISHMENT IS EFFECTED , INCLUDES , PURSUANT TO ARTICLE 58 OF THE EEC TREATY , THE RIGHT OF COMPANIES OR FIRMS FORMED IN ACCORDANCE WITH THE LAW OF A MEMBER STATE AND HAVING THEIR REGISTERED OFFICE , CENTRAL ADMINISTRATION OR PRINCIPAL PLACE OF BUSINESS WITHIN THE COMMUNITY TO PURSUE THEIR ACTIVITIES IN THE MEMBER STATE CONCERNED THROUGH A BRANCH OR AGENCY . WITH REGARD TO COMPANIES , IT SHOULD BE NOTED IN THIS CONTEXT THAT IT IS THEIR REGISTERED OFFICE IN THE ABOVE-MENTIONED SENSE THAT SERVES AS THE CONNECTING FACTOR WITH THE LEGAL SYSTEM OF A PARTICULAR STATE , LIKE NATIONALITY IN THE CASE OF NATURAL PERSONS . ACCEPTANCE OF THE PROPOSITION THAT THE MEMBER STATE IN WHICH A COMPANY SEEKS TO ESTABLISH ITSELF MAY FREELY APPLY TO IT A DIFFERENT TREATMENT SOLELY BY REASON OF THE FACT THAT ITS REGISTERED OFFICE IS SITUATED IN ANOTHER MEMBER STATE WOULD THUS DEPRIVE THAT PROVISION OF ALL MEANING .

28. It should be borne in mind that the second paragraph of Article 43 EC provides that freedom of establishment is to be exercised under the conditions which the legislation of the country of establishment lays down for its own nationals. It follows that, where the taking-up or pursuit of a specific activity is regulated in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with those conditions (Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 36; and Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 25).

50. It should be noted that the Spanish version of that article 10 did not specify the nature of those commercial or financial advantages, unlike all the other language versions, which used the term ‘specific’ or ‘special’ to describe those advantages. However, according to settled case‑law, the different language versions of a provision of Community law must be uniformly interpreted and, in the case of divergence between those versions, the relevant provision must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see Case C‑1/02 Borgmann [2004] ECR I‑3219, paragraph 25; Case C‑227/01 Commission v Spain [2004] ECR I‑8253, paragraph 45, and judgment of 16 March 2006 in Case C‑332/04 Commission v Spain , not published in the ECR, paragraph 52).

52. As the Commission rightly maintains, the project in question is part of a 251-km-long railway line between Valencia and Tarragona, which forms part of the project known as the ‘Mediterranean corridor’, linking the Spanish region of Levante to Catalonia and the French border.

45. In the context of a tax rule which seeks to prevent or to mitigate the taxation of distributed profits, the situation of a parent company receiving foreign-sourced dividends is comparable to that of a parent company receiving nationally-sourced dividends in so far as, in each case, the profits made are, in principle, liable to be subject to a series of charges to tax (see Test Claimants in the FII Group Litigation , paragraph 62).

25. It has been held that exemption from the disputed tax, in the case of legal persons which do not have their centre of management in France – by contrast with other persons liable to the tax – is subject, pursuant to Article 990 E(2) and (3) of the French Tax Code, to an additional condition: a convention must have been concluded between the French Republic and the State concerned. In the absence of such a convention, a legal person which does not have its centre of management in France has no prospect of making a successful application for exemption from the disputed tax, pursuant to Articles 990 D and 990 E(2) and (3) of the French Tax Code. Given that only the States concerned can decide whether to bind themselves by means of conventions, the condition concerning the existence of a convention on administrative assistance or of a treaty may, de facto , entail for that category of legal persons a permanent regime of non-exemption from the disputed tax, making investment in immovable property in France less attractive for non-resident companies (see ELISA , paragraphs 75 to 77).

77. It follows that the requirements laid down by the national legislation at issue in the main proceedings in order to benefit from the exemption from the disputed tax make investment in immovable property in France less attractive for non-resident companies, such as the holding companies incorporated under Luxembourg law.

23. The involvement of national courts is the result of the direct effect which the prohibition on implementation of planned aid laid down in the third sentence of Article 108(3) TFEU has been held to have. In this respect, the Court has stated that the immediate enforceability of the prohibition on implementation referred to in that provision extends to all aid which has been implemented without being notified (judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 29 and the case-law cited).

37. First of all, it should be noted that, apart from certain exceptions not relevant to the main proceedings, taxation of motor vehicles has not been harmonised at European Union level. The Member States are thus free to exercise their powers of taxation in that area provided that they do so in compliance with European Union law (see Case C‑451/99 Cura Anlagen [2002] ECR I‑3193, paragraph 40; Case C‑464/02 Commission v Denmark [2005] ECR I‑7929, paragraph 74; Joined Cases C‑151/04 and C‑152/04 Nadin and Nadin-Lux [2005] ECR I‑11203, paragraph 40; judgment of 23 February 2006 in Case C‑232/03 Commission v Finland , paragraph 46; order in Case C‑242/05 van de Coevering [2006] ECR I‑5843, paragraph 23; order of 22 May 2008 in Case C‑42/08 Ilhan , paragraph 17, and order in Case C‑364/08 Vandermeir [2008] ECR I‑8087, paragraph 22).

40. Subject to certain exceptions which are not relevant here, the taxation of motor vehicles has not been harmonised. Member States are therefore free to exercise their powers of taxation in that area, provided they do so in compliance with Community law (Case C‑451/99 Cura Anlagen [2002] ECR I-3193, paragraph 40).

52 In that context, it should be noted that, although it is, in principle, for the trader alleging exhaustion of trade mark rights to prove that the conditions for applying Article 7(1) of Directive 2008/95 are satisfied (see, to that effect, judgment of 20 November 2001, Zino Davidoff and Levi Strauss, C‑414/99 to C‑416/99, EU:C:2001:617, paragraph 54), that rule must be qualified where it is liable to allow the proprietor to partition national markets and thus help to maintain price differences between Member States (see, to that effect, judgment of 8 April 2003, Van Doren + Q, C‑244/00, EU:C:2003:204, paragraphs 37 and 38).

43. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on points of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, to that effect, Case C-104/00 P DKV v OHIM [2002] ECR I-7561, paragraph 22; Case C-194/99 P Thyssen Stahl v Commission [2003] ECR I-10821, paragraph 20; and Case C-136/02 P Mag Instrument v OHIM [2004] ECR I-0000, paragraph 39).

22 Second, it should be pointed out that the actual application by the Court of First Instance of that criterion to this case, as challenged by DKV, involves findings of a factual nature. As the Advocate General has pointed out at point 58 et seq. of his Opinion, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence before it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgment in Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 78 and order in Case C-323/00 P DSG v Commission [2002] ECR I-0000, paragraph 34).

17 Secondly, it follows from settled case-law that, within the framework of proceedings brought under Article 177 of the Treaty, the Court does not have jurisdiction to give a ruling on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see, in particular, Case 223/78 Grosoli [1979] ECR 2621, paragraph 3).

24. Should that legislation have restrictive effects on the free movement of capital, those effects would be the unavoidable consequence of such an obstacle to freedom of establishment as there might be, and do not therefore justify an independent examination of that legislation from the point of view of Article 56 EC (see, to that effect, Case C‑36/02 Omega [2004] ECR I‑9609, paragraph 27; Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 33; and Test Claimants in the Thin Cap Group Litigation , paragraph 34).

27. In the circumstances of this case, the aspect of the freedom to provide services prevails over that of the free movement of goods. The Bonn police authority and the Commission of the European Communities have rightly pointed out that the contested order restricts the importation of goods only as regards equipment specifically designed for the prohibited variant of the laser game and that that is an unavoidable consequence of the restriction imposed with regard to supplies of services by Pulsar. Therefore, as the Advocate General has concluded in paragraph 32 of her Opinion, there is no need to make an independent examination of the compatibility of that order with the Treaty provisions governing the free movement of goods.

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

54. It should also be observed that the priority nature of an interlocutory procedure for the review of the constitutionality of a national law, the content of which merely transposes the mandatory provisions of a European Union directive, cannot undermine the jurisdiction of the Court of Justice alone to declare an act of the European Union invalid, and in particular a directive, the purpose of that jurisdiction being to guarantee legal certainty by ensuring that EU law is applied uniformly (see, to that effect, Case 314/85 Foto‑Frost [1987] ECR 4199, paragraphs 15 to 20; Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 27; and Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 53).

20 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT THE NATIONAL COURTS HAVE NO JURISDICTION THEMSELVES TO DECLARE THAT ACTS OF COMMUNITY INSTITUTIONS ARE INVALID . THE SECOND QUESTION

69. It should be recalled that the Court has consistently held that provisions of European Union law, such as those of the Customs Code, must be interpreted in the light of the fundamental rights which, according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures (see, to that effect, judgment in Österreichischer Rundfunk and Others , C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraph 68, and Google Spain and Google , C‑131/12, EU:C:2014:317, paragraph 68).

22. It follows, first, that the subject-matter of the proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision. Accordingly, the application must be based on the same grounds and pleas as the reasoned opinion (see, Case C-287/00 Commission v Germany [2002] ECR I-5811, paragraph 18, and Case C-305/03 Commission v United Kingdom [2006] ECR I‑1213, paragraph 22).

18 It follows, first, that the subject-matter of the proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision. Accordingly, the application must be based on the same grounds and pleas as the reasoned opinion (see, in particular, Commission v Italy, cited above, paragraph 11).

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

29. According to settled case-law, the principles of equal treatment and non-discrimination require that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case C-354/95 National Farmers’ Union and Others [1997] ECR I-4559, paragraph 61; Case C-152/09 Grootes [2010] ECR I-11285, paragraph 66; and Case C-236/09 Association belge des Consommateurs Test-Achats and Others [2011] ECR I-773, paragraph 28).

61 The Court has consistently held that the principle of non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, Case C-56/94 SCAC v Associazione dei Produttori Ortofrutticoli [1995] ECR I-1769, paragraph 27).

42. In accordance with the Court's settled case-law, Article 4 of the Sixth Directive thus confers a very wide scope on VAT, comprising all stages of production, distribution and the provision of services (see, inter alia , Case C-186/89 Van Tiem [1990] ECR I-4363, paragraph 17).

Certes, selon la jurisprudence de la Cour, le non‑respect des règles de procédure relatives à l’adoption d’un acte faisant grief, tel le fait, pour la Commission, de ne pas avoir adopté une décision dans le délai fixé par le législateur de l’Union, constitue une violation des formes substantielles qu’il appartient au juge de l’Union de soulever d’office (voir, en ce sens, arrêts du 4 septembre 2014, , C‑192/13 P, EU:C:2014:2156, point 103, ainsi que du 24 juin 2015, , C‑549/12 P et C‑54/13 P, EU:C:2015:412, point 92).

92. It is apparent from the Court’s case-law that failure to comply with the procedural rules relating to the adoption of an act adversely affecting an individual, such as a failure on the part of the Commission to have adopted a decision within the time-limit prescribed by the EU legislature, constitutes an infringement of essential procedural requirements, which it is a matter for the EU judicature to raise of its own motion (see judgments in Spain v Commission , C‑192/13 P, EU:C:2014:2156, paragraph 103; Spain v Commission , C‑197/13 P, EU:C:2014:2157, paragraph 103 and the case-law cited; and Spain v Commission , C‑429/13 P, EU:C:2014:2310, paragraph 34).

57. Thus a Member State which, pursuant to a decision of the Commission, is obliged to recover unlawful aid is free to choose the means of fulfilling that obligation, provided that the measures chosen do not adversely affect the scope and effectiveness of Union law (Case C‑209/00 Commission v Germany , paragraph 34; Case C‑210/09 Scott and Kimberly Clark [2010] ECR I‑0000, paragraph 21; and Commission v Slovakia , paragraph 51).

41. The fact that the supply of services in question will benefit the owner of the apartment at issue only after the contract has expired does not alter anything in that regard, seeing that, as from the conclusion of that contract, the parties to such a bilateral contract undertake to perform reciprocal services for each other (see, by analogy, Case C‑174/00 Kennemer Golf [2002] ECR I‑3293, paragraph 40, and RCI Europe , paragraphs 31 and 33).

31. In the case in the main proceedings, the service provided by RCI Europe is certainly not immediate. However, it undertakes to supply in the future the service required at the request of one of its members.

41. The fact that she was not actually available on the employment market of the host Member State for a few months does not mean that she has ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement (see, by analogy, Orfanopoulos and Oliveri , C‑482/01 and C‑493/01, EU:C:2004:262, paragraph 50).

48. Under Article 4(1) of the Sixth Directive, a taxable person means any person who independently carries on such economic activities. Economic activities are defined in Article 4(2) as encompassing all activities of producers, traders and persons supplying services, in particular the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis. That concept of ‘exploitation’ refers, in accordance with the requirements of the principle that the common system of VAT should be neutral, to all those transactions, whatever their legal form (see Van Tiem , cited above, paragraph 18, and Régie dauphinoise , paragraph 15).

15 It follows from Article 2 of the Sixth Directive, which defines the scope of VAT, that only activities of an economic nature are subject to that tax. Under Article 4(1) a taxable person is any person who independently carries out one of those economic activities. The concept of "economic activities" is defined in Article 4(2) as comprising all activities of producers, traders and persons supplying services, and in particular the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis. Finally, it follows from Article 2(1) that a taxable person must be acting "as such" if a transaction is to be subject to value added tax.

55. The criterion of substantive identity, which allows legislation adopted after the date of accession to be included within the scope of Article 70 of the Act of Accession, is to be strictly interpreted, so that later legislation which is based on an approach which differs from that of the previous law and establishes new procedures cannot be treated as legislation existing at the time of accession.  Thus, Article 70 of the Act of Accession cannot be applied to later legislation which includes a number of significant differences when compared with the legislation existing on the date of accession (Konle , paragraph 53).

111. As the General Court noted in paragraph 28 of the judgment under appeal, partial annulment of a European Union act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see, inter alia, Case C-29/99 Commission v Council [2002] ECR I-11221, paragraphs 45 and 46; Case C-378/00 Commission v Parliament and Council [2003] ECR I-937, paragraph 30; and Case C‑244/03 France v Parliament and Council [2005] ECR I‑4021, paragraph 12; see, to that effect, Case C-378/00 Commission v Parliament and Council [2003] ECR I‑937, paragraph 30). The Court has also repeatedly held that the requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 257; Case C-29/99 Commission v Council cited above, paragraph 46; and Case C‑244/03 France v Parliament and Council , cited above, point 13).

257 However, it does not appear that annulment limited to the section of the operative part of the contested decision which relates to the conditions and obligations set out in point 63 thereof is possible without the substance of the decision being altered.

34. That broad construction of the concept of ‘re-utilisation’ is lent support by the objective pursued by the Community legislature through the establishment of a sui generis right (see, to that effect, as regards the concept of extraction, Directmedia Publishing , paragraph 32).

67. Fourthly, it is to be remembered that, according to settled case-law, in proceedings for failure to fulfil obligations it is incumbent upon the Commission to prove the alleged failure. It is the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, (Case C-387/06 Commission v Finland [2008] ECR I-0000, paragraph 25 and the case-law cited).

25. À cet égard, il convient de rappeler que, selon une jurisprudence constante, dans le cadre d’un recours en manquement, il incombe à la Commission d’établir l ’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement (voir en ce sens, notamment, arrêt du 20 octobre 2005, Commission/Royaume‑Uni, C‑6/04, Rec. p. I‑9017, point 75 et jurisprudence citée).

29. It should also be recalled that the HS Explanatory Notes are important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see Case C‑11/93 Siemens Nixdorf [1994] ECR I‑1945, paragraph 12; Case C‑382/95 Techex [1997] ECR I‑7363, paragraph 12; Case C‑15/05 Kawasaki Motors Europe [2006] ECR I‑3657, paragraph 36; and Case C‑123/09 Roeckl Sporthandschuhe [2010] ECR I‑0000, paragraph 29). Goods characteristic of sets such as those at issue in the main proceedings

55. Where the tax authorities find that the right to deduct has been exercised fraudulently, they are permitted to claim repayment of the deducted sums retroactively (see, inter alia, Case 268/83 Rompelman [1985] ECR 655, paragraph 24; Case C‑110/94 INZO [1996] ECR I-857, paragraph 24; and Gabalfrisa , paragraph 46). It is a matter for the national court to refuse to allow the right to deduct where it is established, on the basis of objective evidence, that that right is being relied on for fraudulent ends (see Fini H , paragraph 34).

24 AS REGARDS THE QUESTION WHETHER ARTICLE 4 MUST BE INTERPRETED AS MEANING THAT A DECLARED INTENTION TO LET FUTURE PROPERTY IS A SUFFICIENT GROUND FOR ASSUMING THAT THE ACQUIRED PROPERTY IS TO BE USED FOR A TAXABLE ACTIVITY AND THAT THEREFORE , ON THAT BASIS , THE INVESTOR MUST BE TREATED AS A TAXABLE PERSON , IT MUST FIRST BE POINTED OUT THAT IT IS FOR THE PERSON APPLYING TO DEDUCT VAT TO SHOW THAT THE CONDITIONS FOR DEDUCTION ARE MET AND IN PARTICULAR THAT HE IS A TAXABLE PERSON . THEREFORE ARTICLE 4 DOES NOT PRECLUDE THE REVENUE AUTHORITIES FROM REQUIRING THE DECLARED INTENTION TO BE SUPPORTED BY OBJECTIVE EVIDENCE SUCH AS PROOF THAT THE PREMISES WHICH IT IS PROPOSED TO CONSTRUCT ARE SPECIFICALLY SUITED TO COMMERCIAL EXPLOITATION .

24. S’agissant des taxes frappant les véhicules automobiles, il est constant que les véhicules présents sur le marché dans un État membre sont des «produits nationaux» de celui-ci, au sens de l’article 110 TFUE. Lorsque ces produits sont mis en vente sur le marché des véhicules d’occasion de cet État membre, ils doivent être considérés comme des «produits similaires» aux véhicules d’occasion importés de même type, de mêmes caractéristiques et de même usure. En effet, les véhicules d’occasion achetés sur le marché dudit État membre et ceux achetés, aux fins de l’importation et de la mise en circulation dans celui-ci, dans d’autres États membres, constituent des produits concurrents (arrêt Tatu, précité, point 55 et jurisprudence citée).

20. In so far as the Opel logo has been registered for toys, this is moreover the case envisaged in Article 5(1)(a) of the directive, namely that of a sign identical to the trade mark in question in relation to goods – toys – which are identical to those for which the trade mark was registered. In that regard, it should be noted in particular that the use at issue in the main proceedings is made ‘in relation to goods’ within the meaning of Article 5(1)(a) of the directive since it concerns the affixing of a sign identical to the trade mark onto goods and the offering of the goods, putting them on the market or stocking them for those purposes within the meaning of Article 5(3)(a) and (b) of the directive (see, to that effect, Arsenal Football Club , paragraphs 40 and 41).

40 In those circumstances, as the national court stated, the use of the sign identical to the mark is indeed use in the course of trade, since it takes place in the context of commercial activity with a view to economic advantage and not as a private matter. It also falls within Article 5(1)(a) of the Directive, as use of a sign which is identical to the trade mark for goods which are identical to those for which the mark is registered.

In that regard, the Court held, first, that the making available to customers, by the principal service provider, of an infrastructure enabling them to pay the price of that service, inter alia, by bank card does not constitute for those customers an end in itself and that the supposed supply of services, which those customers are unable to access separately from the purchase of the main service, can have no interest for such consumers that is independent of that service (see, to that effect, judgment of 2 December 2010 in Everything Everywhere, C‑276/09, EU:C:2010:730, paragraph 27).

27 In that context, the Court has in particular taken the view that the establishment of a selective distribution system which seeks to ensure that the goods are displayed in sales outlets in a manner that enhances their value contributes to the reputation of the goods at issue and therefore contributes to sustaining the aura of luxury surrounding them (see, to that effect, judgment of 23 April 2009, Copad, C‑59/08, EU:C:2009:260, paragraph 29).

29. Setting up a selective distribution system such as that at issue in the main proceedings which, according to the terms of the licence agreement between Dior and SIL, seeks to ensure that the goods are displayed in sales outlets in a manner that enhances their value, ‘especially as regards the positioning, advertising, packaging as well as business policy’, contributes, as Copad acknowledges, to the reputation of the goods at issue and therefore to sustaining the aura of luxury surrounding them.

51. In the area of public procurement, Articles 2d and 2f of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31), read in the light of recitals 25 to 27 of Directive 2007/66, enable the Member States to limit, under certain conditions, the right to bring actions against contracts concluded in breach of EU law (see, to that effect, judgment in MedEval , C‑166/14, EU:C:2015:779, paragraphs 34 and 35). It follows that, in certain circumstances, the interest in preventing legal uncertainty may justify putting the stability of contractual arrangements already in the course of performance before observance of EU law.

33 Next, it is important to emphasise that the rights guaranteed to authors by Article 2(a) and Article 3(1) of Directive 2001/29 are preventive in nature, in the sense that any reproduction or communication to the public of a work by a third party requires the prior consent of its author (concerning the right of reproduction, see, to that effect, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 57 and 74, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 162, and, concerning the right of communication to the public, see, to that effect, judgments of 15 March 2012, SCF Consorzio Fonografici, C‑135/10, EU:C:2012:140, paragraph 75, and of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 15).

75. Under Article 3(1) of Directive 2001/29, authors have a right which is preventive in nature and allows them to intervene, between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such use. On the other hand, under Article 8(2) of Directive 92/100, performers and producers of phonograms have a right which is compensatory in nature, which is not liable to be exercised before a phonogram published for commercial purposes, or a reproduction of such a phonogram, has been used for communication to the public by a user.

20. By contrast, the Court does have jurisdiction to supply the national court with all the guidance as to the interpretation of Community law necessary to enable that court to rule on the compatibility of the national rules with the provisions of Community law (see, inter alia, Lamaire , paragraph 10, and Wilson , paragraph 35).

53 It is apparent from all of the foregoing that the liability mechanism established by Directive 2004/35 is founded on the precautionary principle and on the polluter-pays principle. To that end, that directive places operators under a duty both to prevent and to remedy environmental damage (see, inter alia, judgment of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 75).

75. If, on the other hand, the directive were to apply, it must be noted that, under the system set up by Directive 2004/35, operators are under a duty both to prevent and remedy environmental damage. Accordingly, in particular in accordance with the precautionary principle and as is apparent from recital 2 in the preamble to the directive, those operators must, first, take the preventive measures necessary to ensure that environmental damage does not occur.

56. When it comes to determining what legislation is applicable in such a situation by virtue of Regulation No 1408/71, it must be held that the general rule in Article 13(2)(c) of the regulation, which designates the legislation of the flag Member State in relation to mariners, is not applicable by analogy, since, in the case before the referring court, the person concerned is working on a vessel flying the flag of a third State.

62. Nevertheless, the failure to comply with such a condition is likely to constitute a breach only if it would render nugatory a procedural safeguard granted to the Member States (see, to that effect, Finland v Commission , cited above, paragraph 34 and Luxembourg v Commission , cited above, paragraph 24).

34 It must be held that the Commission is bound, in its relations with the Member States, to respect the conditions it has imposed on itself by implementing regulations. However, the Member States cannot, in their relations with the Commission, adopt purely formalist positions, when it is clear from the circumstances that their rights were fully protected. In the present case, as was pointed out at paragraph 31 of this judgment, the document of 20 May 1997 informed the Finnish Government fully about the Commission's reservations and the corrections which would probably be made to the premiums in question, so that it fulfilled the warning function conferred on a written communication by Article 5(2)(c) of Regulation No 729/70 and the first subparagraph of Article 8(1) of Regulation No 1663/95. In those circumstances, the mere omission, in that document, of a reference to Regulation No 1663/95 does not appear to be a breach of an essential formal requirement.

34. In the light of the grounds of the judgment in Beckmann set out at paragraph 5 of the present judgment, there is no reason to treat benefits applied for upon dismissal by reason of redundancy any differently from those applied for upon early retirement agreed between the employer and the employee which does not correspond to the departure of an employee at the end of his or her normal working life as laid down by the general structure of the pension scheme of which he or she is a member.

43 It must be recalled that the Treaty provisions concerning freedom of movement for persons do not prevent the adoption of rules or practices excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, such as, for example, matches between national teams from different countries. The Court stressed, however, that that restriction on the scope of the provisions in question must remain limited to its proper objective and cannot be relied upon to exclude the whole of a sporting activity (see Case 13/76 Donà v Mantero [1976] ECR 1333, paragraphs 14 and 15, and Bosman, paragraphs 76 and 127).

127 It must be recalled that in paragraphs 14 and 15 of its judgment in Donà, cited above, the Court held that the Treaty provisions concerning freedom of movement for persons do not prevent the adoption of rules or practices excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, such as, for example, matches between national teams from different countries. It stressed, however, that that restriction on the scope of the provisions in question must remain limited to its proper objective.

101. It is thus clear that, like the comparable provisions of the Association Agreement applicable to workers (see, as regards Article 12 of the Agreement, Case C-434/93 Bozkurt [1995] ECR I-1475, paragraphs 19 and 20) and the self-employed (see Article 13 of the Agreement), Article 14 thereof cannot be interpreted as entailing the application of principles accepted in connection with comparable provisions of Community law to achieve the opposite result to that intended by the EEC-Turkey Association Agreement.

36 Directive 2001/83 pursues different objectives from those pursued by the CN. In order to maintain the coherence between the interpretation of the CN and that of the HS, which is established by an international convention to which the European Union is a contracting party, the fact that a product has a marketing authorisation as a medicinal product within the meaning of Directive 2001/83 cannot be decisive as regards assessing whether that product falls within the category of ‘medicaments’ within the meaning of CN heading 3004 (see, to that effect, judgments of 12 March 1998, Laboratoires Sarget, C‑270/96, EU:C:1998:103, paragraph 25, and of 4 March 2015, Oliver Medical, C‑547/13, EU:C:2015:139, paragraph 53).

53. The fact that a product bears a CE mark certifying the conformity of a medical device with the provisions of Directive 93/42 constitutes one factor among others to be taken into consideration in that regard. None the less, since Directive 93/42 pursues objectives different from those of the CN and in order to maintain the coherence between the interpretation of the CN and that of the HS, which is established by an international convention to which the European Union is a contracting party, the fact that a product bears a CE mark cannot be decisive as regards an assessment of whether it is intended for medical use within the meaning of heading 9018 of the CN.

34. However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions brought in a certain field of law ( Levez , paragraph 42; Case C‑343/96 Dilexport [1999] ECR I‑579, paragraph 27; and Case C‑63/08 Pontin [2009] ECR I‑0000, paragraph 45).

36. Taking into account the objectives pursued by the legislature, the Court has already held in relation to the concept of ‘organismes reconnus comme ayant un caractère social par l’État membre concerné’ (‘organisations recognised as charitable by the Member State concerned’) under Article 13(A)(1)(g) of the Sixth Directive, corresponding to Article 132(1)(g) of Directive 2006/112 (‘bodies recognised by the Member State concerned as being devoted to social wellbeing’), that it is in principle sufficiently broad to include natural persons and private profit-making entities (see Case C-216/97 Gregg [1999] ECR I-4947, paragraph 17; Case C‑144/00 Hoffmann [2003] ECR I-2921, paragraph 24; and Kingscrest Associates and Montecello , paragraphs 35 and 47).

17 The terms `establishment' and `organisation' are in principle sufficiently broad to include natural persons as well. It may be added that none of the language versions of Article 13A of the Sixth Directive include the term `legal person', which would have been clear and unambiguous, instead of the abovementioned terms. It may be inferred that, in employing those terms, the Community legislature did not intend to confine the exemptions referred to in that provision to the activities carried on by legal persons, but meant to extend the scope of those exemptions to activities carried on by individuals.

19 As regards, first of all, the question whether a debt collection activity is liable to fall within the scope of the Unfair Commercial Practices Directive, it should be borne in mind, first, that Article 2(d) of the Unfair Commercial Practices Directive defines, using a particularly broad formulation, the concept of ‘commercial practices’ as ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (judgment of 19 September 2013, CHS Tour Services, C‑435/11, EU:C:2013:574, paragraph 27).

29. It is apparent from the case-law of the Court that, in the context of the direct-link test that is to be applied by the tax authorities and national courts, they should consider all the circumstances surrounding the transactions concerned and take account only of the transactions which are objectively linked to the taxable person’s taxable activity. The existence of such a link must thus be assessed in the light of the objective content of the transaction in question (see, to that effect, judgment in Becker , C‑104/12, EU:C:2013:99, paragraphs 22, 23 and 33 and the case-law cited).

22. Finally, it is apparent from the case-law that, in the context of the direct-link test, which the tax authorities and national courts are to apply, they should consider all the circumstances surrounding the transactions at issue (see, to that effect, Midland Bank , paragraph 25) and take account only of the transactions which are objectively linked to the taxable person’s taxable activity.

However, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be argued again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgments of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 51, and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 47).

24. It is settled case-law that the right to a refund of taxes levied by a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law prohibiting such taxes, as interpreted by the Court. The Member States are therefore in principle required to repay taxes levied in breach of EU law (judgments in Littlewoods Retail and Ot hers , C‑591/10, EU:C:2012:478, paragraph 24; Irimie , C‑565/11, EU:C:2013:250, paragraph 20; and Nicula , C‑331/13, EU:C:2014:2285, paragraph 27).

24. It is settled case-law that the right to a refund of charges levied in a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court (see, inter alia, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12, and Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 84). The Member State is therefore in principle required to repay charges levied in breach of Community law (Joined Cases C-192/95 to C-218/95 Comateb and Others [1997] ECR I-165, paragraph 20; Metallgesellschaft , paragraph 84; Case C-147/01 Weber’s Wine World and Others [2003] ECR I-11365, paragraph 93; Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 202).

68 As the Court held in its judgment in Case 101/83 Raad van Arbeid v Brusse [1984] ECR 2223, paragraph 30, that article creates, in favour of a worker who is subject to the legislation of a Member State other than the State in whose territory the members of his family reside, a real entitlement to the family benefits provided for by the applicable legislation. That entitlement cannot be defeated by the application of a provision of that legislation by virtue of which persons not residing in the territory of the Member State in question are not to receive family benefits.

83. It is established case-law that the requirement that the General Court give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise (judgment in FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 91 and the case-law cited).

91. It should however be recalled, first, that, as the Court of Justice has repeatedly held, the requirement that the Court of First Instance give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise (see, inter alia, Case C-274/99 P Connolly v Commission [2001] ECR I‑1611, paragraph 121; Case C-197/99 P Belgium v Commission [2003] ECR I‑8461, paragraph 81; and Technische Glaswerke Ilmenau v Commission , paragraph 90).

47. In that regard, although the Member States may adopt, under Article 273 of the VAT Directive, measures to ensure the correct collection of VAT and to prevent evasion, those measures must not go further than is necessary to attain those objectives and must not undermine the neutrality of VAT (see Case C-385/09 Nidera Handelscompagnie [2010] ECR I-10385, paragraph 49, and Klub , paragraph 50).

43. In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and to apply to members of the disadvantaged group the same arrangements as those enjoyed by other workers (see, in respect of equal pay for men and women, Case C-184/89 Nimz [1991] ECR I-297, paragraphs 18 to 20, and Case C-408/92 Avdel Systems [1994] ECR I-4435, paragraph 16).

19 It should also be pointed out that the Court has consistently held (see in particular the judgment of 9 March 1978 in Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629) that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary by refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.

62. However, the imposition of any new measure in that context is not prohibited. The adoption of measures which apply in the same way to both Turkish nationals and citizens of the Union is not inconsistent with the standstill rules. If such measures applied to nationals of Member States but were not also imposed on Turkish nationals, Turkish nationals would be placed in a more favourable position than citizens of the Union, which would be clearly contrary to the requirement laid down in Article 59 of the Additional Protocol, under which the Republic of Turkey may not receive more favourable treatment than that which Member States grant to one another pursuant to the EC Treaty (see, to that effect, Soysal and Savatli , paragraph 61, and Sahin , paragraph 67).

30. Regarding the objectives of Regulation No 1768/92, firstly, it must be noted that the fundamental objective of the Regulation, as set out in the first and second recitals in the preamble thereto, is to ensure sufficient protection to encourage pharmaceutical research, which plays a decisive role in the continuing improvement in public health (Case C‑392/97 Farmitalia [1999] ECR I‑5553, paragraph 19). In that regard, the third and fourth recitals in the preamble give as a reason for the adoption of the Regulation the fact that the period of effective protection under the patent is insufficient to cover the investment put into the pharmaceutical research. Regulation No 1768/92 thus seeks to make up for that insufficiency by creating an SPC for medicinal products. It seeks, in addition, to confer supplementary protection on the holders of national or European patents, without instituting any preferential ranking amongst them ( Biogen , paragraphs 26 and 27).

19 That line of argument must be accepted. If the certificate did not cover the actual medicinal product, as protected by the basic patent and one of the possible forms of which is the subject-matter of a marketing authorisation, the fundamental objective of Regulation No 1768/92, as set out in the first and second recitals in the preamble thereto, which is to provide for sufficient protection to encourage research in the pharmaceutical field, which plays a decisive role in the continuing improvement in public health, could not, for the reasons set out in paragraph 18 of this judgment, be attained.

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).