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That court asked the Court of Justice whether the Community was entitled to adopt the regulation on the basis of Article 95 EC and whether, by setting the maximum retail price, the Community legislature had infringed the principles of subsidiarity and/or proportionality.
In that context, the Court states that the level of retail charges for international roaming services, at the time of adoption of the regulation, was high and the relationship between costs and charges was not such as would prevail in fully competitive markets.
In those circumstances, the Community legislature was actually confronted with a situation in which it appeared likely that divergent national measures would be adopted with the aim of lowering retail charges, but without affecting wholesale charges.
Such a development could however have caused significant distortions of competition and disrupted the orderly functioning of the Community-wide roaming market, which justified the adoption of a regulation on the basis of Article 95 EC in order to protect the proper functioning of the internal market.