ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 160/7

Judgment of the Court (First Chamber) of 7 April 2011 (reference for a preliminary ruling from the Rechtbank van koophandel te Brussel — Belgium) — Francesco Guarnieri & Cie v Vandevelde Eddy VOF

(Case C-291/09) (1)

(Free movement of goods - Article 34 TFEU - Cautio judicatum solvi - Company governed by Monegasque law - First paragraph of Article 18 TFEU)

2011/C 160/04

Language of the case: Dutch

Referring court

Rechtbank van koophandel te Brussel

Parties to the main proceedings

Applicant: Francesco Guarnieri & Cie

Defendant: Vandevelde Eddy VOF

Re:

Reference for a preliminary ruling — Rechtbank van Koophandel te Brussel — Interpretation of Articles 28 EC, 29 EC and 30 EC — Whether security for costs and damages (cautio judicatum solvi) is an infringement of Community rules in relation to the free movement of goods

Operative part of the judgment

Article 34 TFEU must be interpreted as not precluding the legislation of a Member State from requiring the provision of security pending judgment, by a claimant of Monegasque nationality which has brought proceedings before one of the civil courts of that State against a national of that State in order to obtain payment of invoices relating to the delivery of goods assimilated to Community goods, although such a requirement is not imposed on nationals of that Member State.

(1) OJ C 267, 7.11.2009.
EN Official Journal of the European Union C 204/5

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Kronoply GmbH & Co. KG, Kronotex GmbH & Co. KG, Zellstoff Stendal GmbH, Federal Republic of Germany, Land Sachsen-Anhalt

(Case C-83/09 P) (1)

(Appeal - State aid - Article 88(2) and (3) EC - Regulation (EC) No 659/1999 - Decision not to raise any objections - Action for annulment - Conditions for admissibility - Pleas in law that may be relied upon in an action for annulment - Notion of ‘interested party’ - Competitive link - Assignment - Market for supply)

2011/C 204/09

Language of the case: German

Parties

Appellant: European Commission (represented by: K. Gross and V. Kreuschitz, Agents)

Other parties to the proceedings: Kronoply GmbH & Co. KG, Kronotex GmbH & Co. KG (represented by: R. Nierer and L. Gordalla, Rechtsanwälte), Zellstoff Stendal GmbH (represented by: T. Müller-Ibold and K. Karl, Rechtsanwälte), Federal Republic of Germany, Land Sachsen-Anhalt

Re:

Appeal against the judgment of 10 December 2008 in Case T-388/02 Kronoply and Kronotex v Commission inasmuch as the Court of First Instance (Seventh Chamber) held admissible (albeit ultimately unfounded) an action for annulment of the Commission’s decision of 19 June 2002 to raise no objections in relation to the aid granted by the German authorities in favour of Zellstoff Stendal for the construction of a production plant for pulp — Incorrect assessment of the conditions for the admissibility of an action for annulment of a Commission decision based on Article 88(3) EC, brought by a party concerned within the meaning of Article 88(2) EC

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders the European Commission and Zellstoff Stendal GmbH to bear their own costs.

(1) OJ C 102, 1.5.2009.
EN Official Journal of the European Union C 186/4

Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Tribunal de grande instance de Paris — France) — Prunus SARL, Polonium SA v Directeur des services fiscaux

(Case C-384/09) (1)

(Direct taxation - Free movement of capital - Article 64 TFEU - Legal persons established in a non-Member State - Ownership of immovable property located in a Member State - Tax on the market value of that property - Refusal of exemption - Assessment with regard to overseas countries and territories - Combating tax evasion - Joint and several liability)

2011/C 186/07

Language of the case: French

Referring court

Tribunal de grande instance de Paris

Parties to the main proceedings

Applicants: Prunus SARL, Polonium SA

Defendant: Directeur des services fiscaux

Re:

Reference for a preliminary ruling — Tribunal de grande instance (Paris) — Interpretation of Article 56 et seq. of the EC Treaty — Tax on the commercial value of immoveable property situated in France — Compatibility with the Treaty of national legislation exempting from that tax legal persons having their effective centre of management in France or another Member State of the European Union, but making that exemption conditional, as regards legal persons having their effective centre of management in the territory of a non-Member State, on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between France and that State or of a treaty containing a clause prohibiting discrimination on grounds of nationality — Refusal to exempt in respect of two companies established in the British Virgin Islands — Obligation for the joint and several debtors, legal persons established in France, to pay the tax

Operative part of the judgment

Article 64(1) TFEU must be interpreted as meaning that Article 63 TFEU is without prejudice to the application of national legislation in force on 31 December 1993 which exempts from the tax on the market value of immovable property located in the territory of a Member State of the European Union companies having their registered office in the territory of that State and makes entitlement to that exemption, for a company whose registered office is in an overseas country or territory, conditional either on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between that Member State and that territory or on there being a requirement, under a treaty containing a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than companies established in the territory of that Member State.

(1) OJ C 312, 19.12.2009.
1.

The provisions of point 6 of Annex III(A) to Council Regulation (EC) No 1408/71 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 and as amended by Regulation (EC) No 629/2006 of the European Parliament and of the Council of 5 April 2006, read in conjunction with Article 7(2)(c) thereof, do not preclude a national rule, such as that at issue in the main proceedings, which provides for payment of a supplement to old age benefit where the amount of that benefit, granted pursuant to Article 20 of the bilateral agreement between the Czech Republic and the Slovak Republic signed on 29 October 1992 as a measure to regulate matters after the dissolution of the Czech and Slovak Federal Republic, is lower than that which would have been received if the retirement pension had been calculated in accordance with the legal rules of the Czech Republic.
1.

Article 2 of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, must be interpreted as meaning that a product, such as that at issue in the main proceedings, which was placed on the market in the European Community as a medicinal product for human use before obtaining a marketing authorisation in accordance with Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products, as amended by Council Directive 89/341/EEC of 3 May 1989, and, in particular, without undergoing safety and efficacy testing, is not within the scope of Regulation No 1768/92, as amended, and may not, therefore, be the subject of a supplementary protection certificate.
1.

Declares that, — by permitting activities of real estate brokers to be carried out only within real estate agencies; — by requiring real estate brokerages and real estate agents established in other Member States to cover their professional liability by taking out insurance which complies with Portuguese legislation; — by requiring real estate brokerages established in other Member States to hold positive equity within the meaning of that legislation, and — by making real estate brokerages and real estate agents established in other Member States subject to the full disciplinary control of the Instituto de Construção e do Imobiliário IP, the Portuguese Republic has failed to fulfil its obligations under Article 56 TFEU, and — by requiring real estate brokerages to carry out exclusively real estate brokerage activities, with the exception of the management of real property on behalf of third parties, and — by requiring real estate agents to carry out exclusively real estate agency activities, the Portuguese Republic has failed to fulfil its obligations under Articles 49 TFEU and 56 TFEU;
—

a debtor company’s main centre of interests must be determined by attaching greater importance to the place of the company’s central administration, as may be established by objective factors which are ascertainable by third parties. Where the bodies responsible for the management and supervision of a company are in the same place as its registered office and the management decisions of the company are taken, in a manner that is ascertainable by third parties, in that place, the presumption in that provision cannot be rebutted. Where a company’s central administration is not in the same place as its registered office, the presence of company assets and the existence of contracts for the financial exploitation of those assets in a Member State other than that in which the registered office is situated cannot be regarded as sufficient factors to rebut the presumption unless a comprehensive assessment of all the relevant factors makes it possible to establish, in a manner that is ascertainable by third parties, that the company’s actual centre of management and supervision and of the management of its interests is located in that other Member State;
2.

Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94 must be interpreted as meaning that the proprietor of a trade mark with a reputation is entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trade mark, which the competitor has, without the proprietor’s consent, selected in an internet referencing service, where the competitor thereby takes unfair advantage of the distinctive character or repute of the trade mark (free-riding) or where the advertising is detrimental to that distinctive character (dilution) or to that repute (tarnishment). Advertising on the basis of such a keyword is detrimental to the distinctive character of a trade mark with a reputation (dilution) if, for example, it contributes to turning that trade mark into a generic term. By contrast, the proprietor of a trade mark with a reputation is not entitled to prevent, inter alia, advertisements displayed by competitors on the basis of keywords corresponding to that trade mark, which put forward — without offering a mere imitation of the goods or services of the proprietor of that trade mark, without causing dilution or tarnishment and without, moreover, adversely affecting the functions of the trade mark with a reputation — an alternative to the goods or services of the proprietor of that mark.
EN Official Journal of the European Union C 49/2

Judgment of the Court (Grand Chamber) of 21 December 2011 — European Commission v Republic of Austria

(Case C-28/09) (1)

(Failure of a Member State to fulfil obligations - Articles 28 EC and 29 EC - Free movement of goods - Measures having equivalent effect to quantitative restrictions on imports and exports - Transport - Directives 96/62/EC and 1999/30/EC - Sectoral traffic prohibition for lorries of over 7,5 tonnes carrying certain goods - Air quality - Protection of health and the environment - Principle of proportionality - Consistency)

2012/C 49/03

Language of the case: German

Parties

Applicant: European Commission (represented by: P. Oliver, A. Alcover San Pedro and B. Schima, acting as Agents)

Defendant: Republic of Austria (represented by: E. Riedl, G. Eberhard and C. Ranacher, acting as Agents, and L. Schmutzhard and J. Thudium)

Intervening parties in support of the applicant: Italian Republic (represented initially by I. Bruni and subsequently by G. Palmieri, acting as Agents, and G. De Bellis, avvocato dello Stato), Kingdom of the Netherlands (represented by: C. Wissels, Y. de Vries and M. Noort, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 28 EC and 29 EC — Prohibition against driving lorries with a total weight of more than 7.5 tonnes, loaded with certain goods, on a section of the A12 ‘Inntalautobahn’ motorway — Justification of that prohibition under Article 30 EC and the Community legislation relating to ambient air quality

Operative part of the judgment

The Court:

1. Declares that, by prohibiting lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley (Austria), the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 29 EC;

2. Orders the Republic of Austria to pay the costs;

3. Orders the Italian Republic and the Kingdom of the Netherlands to bear their own costs.

(1) OJ C 69, 21.3.2009.
1.

Declares that, by maintaining in favour of the Portuguese State and other public bodies special rights in GALP Energia SGPS SA, such as those provided for in the present case by Law No 11/90 of 5 April 1990 concerning the Framework Law on Privatisations (Lei no 11/90, Lei Quadro das Privatizações), by Decree-Law No 261-A/99 of 7 July 1999 approving the first phase of the privatisation of the share capital of GALP — Petróleos e Gás de Portugal SGPS SA (Decreto-Lei no 261-A/99 aprova a 1.a fase do processo de privatização do capital social da GALP — Petróleos e Gás de Portugal, SGPS, SA), and by the articles of association of that company, granted in connection with the Portuguese State’s golden shares in the share capital of that company, the Portuguese Republic has failed to fulfil its obligations under Article 56 EC;
EN Official Journal of the European Union C 287/2

Judgment of the Court (First Chamber) of 12 July 2012 — European Commission v Kingdom of Spain

(Case C-269/09) (1)

(Failure of a Member State to fulfil obligations - Articles 18 EC, 39 EC and 43 EC - Articles 28 and 31 of the EEA Agreement - Tax legislation - Transfer abroad of a taxpayer’s residence - Obligation to include any income not yet charged to tax in the tax base for the preceding tax year - Loss of the advantage to be gained by deferring the tax debt)

2012/C 287/02

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: R. Lyal and F. Jimeno Fernández, Agents)

Defendant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

Intervener in support of the defendant: Federal Republic of Germany (represented by: M. Lumma and C. Blaschke, and by K. Petersen, Agents), Kingdom of the Netherlands (represented by: C. Wissels and M. de Ree, Agents), Portuguese Republic (represented by: L. Inez Fernandes, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 19 EC, 38 EC and 43 EC and of Articles 28 and 31 of the EEA Agreement — Taxpayers transferring their residence abroad — Obligation to include all income not yet charged to tax in the tax base for the last tax year during which they were considered to be resident taxpayers

Operative part of the judgment

The Court:

1. Declares that the Kingdom of Spain has failed to fulfil its obligations under Articles 18 EC, 39 EC and 43 EC, by adopting and maintaining in Article 14(3) of Law 35/2006 on personal income tax and amending in part the laws on the taxation of corporations, of the income of non-residents and of wealth (Ley 35/2006 del Impuesto sobre la Renta de las Personas Físicas y de modificación parcial de las leyes de los Impuestos sobre Sociedades, sobre la Renta de no residentes y sobre el Patrimonio) of 28 November 2006, a provision under which taxpayers who transfer their residence to another Member State must include, in the tax base for the last tax year in which they were treated as resident taxpayers, any income not yet charged to tax;

2. Dismisses the action as to the remainder;

3. Orders the Kingdom of Spain to pay three-quarters of the costs, and the European Commission to pay the remaining quarter;

4. Orders the Federal Republic of Germany, the Kingdom of the Netherlands and the Portuguese Republic to bear their own costs.

(1) OJ C 220, 12.9.2009.
EN Official Journal of the European Union C 165/2

Judgment of the Court (Third Chamber) of 19 April 2012 (reference for a preliminary ruling from the Tribunale Ordinario di Cosenza (Italy)) — CCIAA di Cosenza v Grillo Star Srl, in liquidation

(Case C-443/09) (1)

(Directive 2008/7/EC - Indirect taxes on the raising of capital - Articles 5(1)(c) and 6(1)(e) - Scope - Annual duty paid to local chambers of commerce, industry, crafts and agriculture)

2012/C 165/02

Language of the case: Italian

Referring court

Tribunale Ordinario di Cosenza

Parties to the main proceedings

Applicant: CCIAA di Cosenza

Defendant: Grillo Star Srl, in liquidation

Re:

Reference for a preliminary ruling — Tribunale Ordinario di Cosenza — Interpretation of Articles 5(1)(c) and 6(1)(e) of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital — Annual duty payable on account of registration in the register of companies maintained by the local chambers of commerce — Annual duty determined on a flat-rate basis — Concept of ‘duties in the form of fees or dues’

Operative part of the judgment

Article 5(1)(c) of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital must be interpreted as not precluding a duty, such as that at issue in the main proceedings, payable annually by all undertakings on account of their registration in the register of undertakings, even if that registration has constituent effect for capital companies and even if the duty is also payable by those companies for the period during which they only carry on activities preparatory to operating a business.

(1) OJ C 51, 27.2.2010.
1.

Declares that by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 63/11

Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg)) — État du Grand-Duché de Luxembourg, Administration de l’enregistrement et des domaines v Pierre Feltgen (in his capacity as administrator in the bankruptcy of Bacino Charter Company SA), Bacino Charter Company SA

(Case C-116/10) (1)

(Sixth VAT Directive - Exemptions - Article 15(4)(a) and 15(5) - Exemption for the hiring of sea-going vessels - Scope)

2011/C 63/20

Language of the case: French

Referring court

Cour de cassation du Grand-Duché de Luxembourg

Parties to the main proceedings

Appellants: État du Grand-Duché de Luxembourg, Administration de l’enregistrement et des domaines

Respondents: Pierre Feltgen (in his capacity as administrator in the bankruptcy of Bacino Charter Company SA), Bacino Charter Company SA

Re:

Reference for a preliminary ruling — Cour de cassation du Grand-Duché de Luxembourg — Interpretation of Article 15(4)(a) and 15(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exemption for hire operations of sea-going vessels — Exemption subject to the condition that such vessels be assigned to navigation on the high seas and provide transport of travellers or the pursuit of commercial, industrial or fishing activities, for reward

Operative part of the judgment

Article 15(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 91/680/EEC of 16 December 1991, must be interpreted as meaning that the exemption from value added tax provided for by that provision does not apply to services consisting of making a vessel available, for reward, with a crew, to natural persons for purposes of leisure travel on the high seas.

(1) OJ C 113, 1.5.2010.
1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC, the Hellenic Republic has failed to fulfil its obligations under that directive;