37In the second place, with regard to the subjective element referred to in paragraph 33 of the present judgment, it should be noted that, in circumstances such as those at issue in the main proceedings, for it to be possible to regard the transactions at issue as being designed to confer an undue advantage on the purchaser in the European Union, it is necessary that the importers intended to confer such an advantage on that purchaser and that the transactions be devoid of any economic and commercial justification for those importers, which it is for the referring court to establish. The latter’s finding that such transactions are not devoid of economic and commercial justification could, for example, be based on the fact that the sale price of the goods was fixed at a level which allowed importers to derive a significant profit from the sales concerned. Likewise, account may also be taken of the fact that it follows from Article 35 of Regulation No 1291/2000, read in conjunction with Article 6(2) of Regulation No 341/2007, that the importers are obliged to use the ‘A’ licences which were issued to them subject to penalties and they therefore have a genuine interest in carrying out imports, including in the context of transactions such as those at issue in the main proceedings.
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