ddrg/super_eurlex huggingface dataset:
Case C‑156/16

Tigers GmbH

v

Hauptzollamt Landshut

(Request for a preliminary ruling from the Finanzgericht München)

(Reference for a preliminary ruling — Implementing Regulation (EU) No 412/2013 — Article 1(3) — Community Customs Code — Article 78 — Rule making the application of individual anti-dumping duty rates conditional upon presentation of a valid commercial invoice — Whether a valid commercial invoice may be presented after the customs declaration — Refusal to refund)

Summary — Judgment of the Court (Eighth Chamber), 12 October 2017

Common commercial policy — Protection against dumping — Imposition of anti-dumping duties — Regulation No 412/2013 — Conditions for application — Presentation of a valid commercial invoice — Presentation subsequent to the customs declaration — Lawfulness — Conditions

(Council Regulations No 2913/92, as amended by Regulation No 2700/2000, Art. 78, and No 412/2013, Art. 1(3))

Article 1(3) of Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China must be interpreted as allowing the presentation, after the customs declaration has been made, of a valid commercial invoice, for the purposes of fixing a definitive anti-dumping duty, in the case where all the other preconditions necessary for obtaining a company-specific anti-dumping duty rate are satisfied and compliance with the proper application of the anti-dumping duties is ensured, this being a matter for the referring court to verify. It thus follows from Article 78 of the Customs Code as a whole that it is permissible to present new material which may be taken into consideration by the customs authorities after the customs declaration has been made. The specific logic of that article is to bring the customs procedure into line with the actual situation (see, to that effect, judgment of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 26 and the case-law cited).

(see paras 31, 39, operative part)
Joined Cases C‑374/16 and C‑375/16

Rochus Geissel

v

Finanzamt Neuss

and

Finanzamt Bergisch Gladbach

v

Igor Butin

(Requests for a preliminary ruling from the Bundesfinanzhof)

(References for a preliminary ruling — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Article 168(a), Article 178(a) and Article 226(5) — Deduction of input tax — Compulsory content of invoices — Legitimate expectation on the part of the taxable person regarding the existence of the conditions giving rise to the right to deduct)

Summary — Judgment of the Court (Fifth Chamber), 15 November 2017

Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Obligations of the taxable person — Holding of an invoice containing certain information — National legislation excluding the right to deduct where the address where the issuer carries out its economic activity is not indicated on the invoice — Not permissible

(Council Directive 2006/112, Arts 168(a), 178(a) and 226(5))

Article 168(a) and Article 178(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 226(5) thereof, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which makes the exercise of the right to deduct input VAT subject to the condition that the address where the issuer of an invoice carries out its economic activity must be indicated on the invoice.

(see para. 50, operative part)
The general principle of EU law of respect for the rights of the defence must be interpreted as a requirement that, in national administrative procedures of inspection and establishment of the basis for the assessment of value added tax, an individual is to have the opportunity to have communicated to him, at his request, the information and documents in the administrative file and considered by the public authority when it adopted its decision, unless objectives of public interest warrant restricting access to that information and those documents.

In a tax inspection procedure, the purpose of which is to verify whether the taxable persons have performed their obligations in that regard, it is indeed legitimate to expect that those persons would request access to those documents and information, with a view to, if need be, providing explanations or supporting their claims against the point of view of the tax authorities. If the rights of the defence are to be genuinely respected, there must nonetheless be a real possibility of access to those documents and that information, unless objectives of public interest warrant restricting that access. In that regard, in a procedure of tax inspection and establishment of the basis for VAT assessment, such restrictions, enshrined in national law, may, in particular, be designed to protect requirements of confidentiality or professional secrecy, which are liable to be infringed by access to certain information and certain documents.

(see paras 33, 34, 36, 39, operative part)
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, is to be interpreted as meaning that, when the competent institution of a Member State calculates a minimum benefit, such as the guaranteed pension at issue in the main proceedings, it is inappropriate to apply Article 46(2) or Article 47(1)(d) of the regulation. Such a benefit must be calculated in accordance with Article 50 of Regulation No 1408/71, in conjunction with the provisions of national law, without, however, applying national provisions, such as those in the main proceedings, providing for a pro rata calculation.

As the Advocate General observed in point 47 of his Opinion, since Regulation No 1408/71 does not require Member States to provide minimum benefits and not all national legislation therefore necessarily makes provision for that kind of benefit, Article 46(2) of that regulation cannot impose specific detailed rules for the calculation of such a benefit.

Consequently, the right to a minimum benefit, such as the guaranteed pension at issue in the main proceedings, must be evaluated not on the basis of Article 46(2) or Article 47(1)(d) of Regulation No 1408/71, but by reference to the specific rules laid down in Article 50 of that regulation and the relevant national legislation.

(see paras 47, 48, 52, operative part 1)
Case C‑560/16

E.ON Czech Holding AG

v

Michael Dědouch and Others

(Request for a preliminary ruling from the Nejvyšší soud)

(Reference for a preliminary ruling — Regulation (EC) No 44/2001 — Jurisdiction in civil and commercial matters — Exclusive jurisdiction — Article 22(2) — Validity of decisions of the organs of companies or legal persons having their seat in the territory of a Member State — Exclusive jurisdiction of the courts of that Member State — Decision of the general meeting of a company ordering the compulsory transfer to that company’s principal shareholder of the shares held by the company’s minority shareholders and determining the consideration to be paid to them by the principal shareholder — Judicial procedure for reviewing the reasonableness of that consideration)

Summary — Judgment of the Court (First Chamber), 7 March 2018

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Exclusive jurisdiction — Proceedings concerning companies or other legal persons — Jurisdiction of the courts of the Member State in which the company has its seat — Scope — Action for review of the reasonableness of the consideration to be paid by the principal shareholder of a company to the minority shareholders in the event of a compulsory transfer of shares — Included

(Council Regulation No 44/2001, Art. 22(2))

Article 22(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for review of the reasonableness of the consideration that the principal shareholder of a company is required to pay to the minority shareholders of that company in the event of the compulsory transfer of their shares to that principal shareholder comes within the exclusive jurisdiction of the courts of the Member State in which that company is established.

(see para. 45 and operative part)
2.

Competition—Fines—Amount—Determination—Determination of the basic amount—Determination of the value of sales—Sales carried out in direct or indirect relation to the infringement—Cartel in the international air freight forwarding services sector—Cartel regarding freight forwarding services as a package of services—Account taken of the value of sales made in the provision of freight forwarding services as a package of services—Lawfulness (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Communication 2006/C 210/02, point 13) (see paras 28-32)
Where a situation, such as that at issue in the main proceedings, does not come within the scope ratione personae of the notion of ‘self-employed persons’, within the meaning of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999, the terms of that agreement must be interpreted as not precluding the legislation of a State party to that agreement, such as that at issue in the main proceedings, which, when a natural person transfers his residence from that State to another State party to that agreement, while maintaining his economic activity in the first of those two States, without undertaking every day, or at least once a week, a journey from the place of his economic activity to that of his residence, provides for the immediate taxation of the unrealised capital gains on significant shareholdings held by that person in companies governed by the laws of the first State at the time of the transfer of residence and which allows deferred recovery of the tax due only if suitable guarantees to ensure recovery of the tax are provided, whereas a person who also holds such shareholdings, but who continues to reside in the territory of the first of those States, need pay tax only at the time of transfer of those shareholdings.

(see para. 32, operative part)
Articles 65 and 167 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those at issue in the cases in the main proceedings, a potential buyer may not be refused the right to deduct the value added tax relating to a payment on account in respect of the goods in question where that payment has been made and received and where, at the time that payment was made, all the relevant information concerning the future supply could be regarded as known to that buyer and the supply of those goods appeared to be certain. However, that buyer may be refused that right if it is established, having regard to objective elements, that, at the time the payment on account was made, he knew or should reasonably have known that that supply was uncertain.

(see para. 51, operative part 1)
Since the conditions laid down in the judgment in Altmark, and those necessary for the application of Article 106(2) TFEU thus generally pursue different objectives, in order to assess an aid measure under Article 106(2) TFEU, the Commission is not required to verify the second and third conditions laid down by the judgment in Altmark. It is nevertheless the case that the first Altmark condition, according to which the recipient undertaking must actually be required to discharge public service obligations which must be clearly defined, also applies where the derogation laid down in Article 106(2) TFEU has been invoked.

As regards the relationship between the conditions laid down in the judgment in Altmark and the examination of an aid measure under Article 106(2) TFEU, verification of the conditions laid down in that case-law occurs upstream, that is to say in the examination of the issue of whether the measure at issue must be characterised as State aid. That issue must be resolved before the one which consists in examining, where necessary, if incompatible aid is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU.

The Member States are entitled, while complying with EU law, to define the scope and the organisation of their service of general interest (SGEIs), and may take into account, in particular, objectives pertaining to their national policy. In that respect, the Member States enjoy a wide discretion, which may be called into question by the Commission only in the event of a manifest error. However, the Member States’ power to define SGEIs is not unlimited. It follows from the judgment in Altmark, that, in that respect, the first Altmark condition is essentially intended to determine whether, first, the recipient undertaking actually has public service obligations to discharge and, secondly, whether those obligations are clearly defined in national law. That condition is designed to ensure transparency and legal certainty, and thus requires that minimum criteria be met in relation to the existence of one or more acts of public authority defining, in a sufficiently precise manner, at least the nature, duration and scope of the public service obligations imposed on the undertakings entrusted with the performance of those obligations. In the absence of a clear definition of such objective criteria, it is not possible to verify whether a particular activity may be covered by the concept of an SGEI.

The fact that there is a market failure on the market concerned and that the service at issue is an activity that could be characterised as an SGEI are not relevant for the purposes of determining whether the undertakings concerned were actually entrusted with discharging public service obligations by a public act and whether those obligations were clearly defined in that act.

(see paras 69-73, 75)
In cases in which the unlawful State aid paid must be recovered from recipient undertakings which are in financial difficulty or are insolvent, such difficulties do not affect the obligation to recover. The Member State is therefore required, as the case may be, to bring about the winding-up of that company, to have its claim registered as one of that company’s liabilities or to take any other measure enabling the aid to be recovered.

Restoration of the previous situation and elimination of the distortion of competition resulting from unlawful aid may, in principle, be achieved through registration of the debt relating to the repayment of the aid in question in the schedule of liabilities. However, such registration can satisfy the recovery obligation only if, where the State authorities are unable to recover the full amount of aid, the insolvency proceedings result in the winding-up of the undertaking, that is to say, in the definitive cessation of its activities, which the State authorities are able to bring about in their capacity as shareholders or creditors. It follows that the definitive cessation of the activities of the undertaking receiving aid is necessary only where the recovery of the entire amount of the aid remains impossible throughout the insolvency proceedings.

Moreover, delayed recovery, namely, after the period prescribed, cannot satisfy the requirements of the TFEU. It seems unlikely that the various steps in insolvency proceedings would normally be taken within the four-month period usually set by the Commission for the recovery of unlawful aid. In those circumstances, registration of the debt relating to the repayment of the aid in question in the schedule of liabilities must be regarded as being, in principle, an appropriate measure capable of ensuring the elimination of the distortion of competition, provided that such a measure is followed either by the recovery of the full amount of that aid or by the winding-up of the undertaking and the definitive cessation of its activities, if such recovery remains impossible throughout the insolvency proceedings. For such a measure to be effective, it must be carried out within the period prescribed by the Commission.

(see paras 37-43)
Joined Cases C‑398/16 and C‑399/16

X BV

and

X NV

v

Staatssecretaris van Financiën

(Requests for a preliminary ruling from the Hoge Raad der Nederlanden)

(Reference for a preliminary ruling — Articles 49 and 54 TFEU — Freedom of establishment — Tax legislation — Corporation tax — Advantages linked to the formation of a single tax entity — Exclusion of cross-border groups)

Summary — Judgment of the Court (First Chamber), 22 February 2018

Freedom of establishment—Tax legislation—Corporation tax—National legislation not allowing a resident parent company to deduct interest in respect of a loan taken out with a related company in order to finance a capital contribution to a subsidiary established in another Member State—Deduction possible in the case of a resident subsidiary, the parent company being able to avail itself of that deduction by forming a tax-integrated entity with the subsidiary—Not permissible—Justification—None (Arts 49 TFEU and 54 TFEU) Freedom of establishment—Tax legislation—Corporation tax—National legislation not allowing a resident parent company to deduct from its profits capital losses derived from fluctuations in the exchange rate, in connection with the value of its shares in a subsidiary established in another Member State—Legislation not providing, symmetrically, for tax to be levied on capital gains derived from those fluctuations—Whether permissible (Arts 49 TFEU and 54 TFEU)
Article 13(2) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as meaning that the proprietor of a mark cannot oppose the further commercialisation, by a parallel importer, of a medical device in its original internal and external packaging where an additional label, such as that at issue in the case in the main proceedings, has been added by the importer, which, by its content, function, size, presentation and placement, does not give rise to a risk to the guarantee of origin of the medical device bearing the mark.

Given that the packaging of the medical device concerned has not been modified and the original presentation of the packaging has not been affected other than by the attachment of a small label, which does not conceal the mark and which designates the parallel importer as responsible for placing it on the market by setting out his details, a barcode and a central pharmacological number, it cannot be held that the attachment of such a label constitutes repackaging within the meaning of the judgments of 23 April 2002, Boehringer Ingelheim and Others (C‑143/00, EU:C:2002:246), and of 26 April 2007, Boehringer Ingelheim and Others (C‑348/04, EU:C:2007:249).

Consequently, it cannot, in any event, be held that the attachment of such a label affects the specific purpose of the mark, which is to guarantee to the consumer or end user the origin of the product that it identifies.

(see paras 35, 36, 39, operative part)
4.

Orders the European Commission to bear its own costs in relation to the proceedings at first instance and on appeal, to pay the costs incurred by the Federal Republic of Germany in relation to the appeal proceedings, and to pay the costs incurred by Lowell Financial Services GmbH in relation to the proceedings at first instance;
24

In those circumstances, the Amstgericht München (Local Court, Munich) decided to stay its decisions as to issuing the arrest warrants concerned and to refer the following questions to the Court of Justice for a preliminary ruling, couched in identical terms in Cases C‑124/16 and C‑213/16: ‘(1) Do Article 2 and Article 6(1) and (3) of Directive 2012/13 preclude a provision of law enacted by a Member State: under which, in criminal proceedings, an accused person who has no place of residence in that Member State must nominate a person authorised to accept service of a penalty order made against him, even though the accused person does not, as a result, have the benefit of the whole of the period for lodging an objection to that penalty order, but he also has no address at which the penalty order can demonstrably be notified to him, and the nomination of a person authorised to accept service and in possession of an address enables him to keep the authorised person informed of where a penalty order can be sent to him with proof of notification? (2) Do Article 2(1) and Article 6(1) and (3) of Directive 2012/13 preclude a provision of law enacted by a Member State: under which, in criminal proceedings, an accused person who has no place of residence in that Member State must nominate a person authorised to accept service of a penalty order made against him, and service on a person authorised to accept service is automatically sufficient for the purpose of calculating the period within which an objection may be lodged, where, in the event of failure to comply with the period calculated in this way, the accused person can apply to have his position restored to the status quo ante and, in those circumstances, an adequate excuse for such failure is that the penalty order was forwarded to him and, after it had been forwarded, he lodged an objection within the prescribed period, that is to say where, by having his position restored to the status quo ante, he can retroactively rely on the unreduced period for lodging an objection, even though, by law, a penalty order is generally declared enforceable in the event of failure to comply with the period for lodging an objection?’
76

It also states that the three very general arguments put forward by the appellants in support of their claim that the General Court took an irrational view of the facts are unfounded. First of all, the assertion that the ground set out in paragraph 70 of the judgment under appeal is unsubstantiated is untenable, the General Court having correctly found that the Commission had carried out a careful, independent and critical review of the appellants’ observations and of their entry on the list of persons subject to restrictive measures that was decided upon by the Sanctions Committee, and, moreover, that it had not automatically reproduced that committee’s conclusions. Next, in the Commission’s submission, the appellants’ arguments that the grounds set out in paragraphs 66 to 70 of the judgment under appeal are incompatible with the judgments of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518); of 21 March 2014, Yusef v Commission (T‑306/10, EU:T:2014:141); and of 14 April 2015, Ayadi v Commission (T‑527/09 RENV, not published, EU:T:2015:205) are unfounded, since the question as to whether there is an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case. Lastly, the argument that paragraphs 66 to 70 of the judgment under appeal are vitiated by an error of law because no approach was made to the United Kingdom at all, at any time, is unfounded. It does not follow from that case-law that the Commission is obliged to approach the United Kingdom. In any event, the Commission had consulted the EU Committee for the review of listings, on which all the Member States are represented.