34As regards the 1998 Circular which, according to the Italian authorities, authorised the release for consumption of the energy drinks in question and thus put an end to the failure to fulfil obligations that gave rise to this action, it should be recalled that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing 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 Case C-476/98 Commission v Germany, cited above, paragraph 42, and Case C-122/02 Commission v Belgium [2003] ECR I-833, paragraph 11).
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