ddrg/super_eurlex huggingface dataset:
21

In those circumstances, the Finanzgericht Köln decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is the exclusion of the set-off of corporation tax as a consequence of the tax exemption of dividend distributions by capital companies in third countries to German capital companies, for which the German legislation requires only that the capital company receiving the dividends has a holding of not less than 10% in the distributing company, subject only to freedom of establishment within the meaning of Article 49 TFEU in conjunction with Article 54 TFEU or also to the free movement of capital within the meaning of Articles 63 TFEU to 65 TFEU, if the actual holding of the capital company receiving the dividends is 100%? (2) Are the provisions concerning freedom of establishment (now Article 49 TFEU) and, as the case may be, also concerning the free movement of capital (Article 67 EEC/EC until 1993, now Articles 63 TFEU to 65 TFEU) to be interpreted as meaning that they preclude a provision which, where the dividends of foreign subsidiaries are exempt from tax, excludes the set-off and refund of corporation tax on those dividend distributions even where the parent company makes a loss, if, for distributions by German subsidiaries, there is provision for relief by setting off corporation tax? (3) Are the provisions concerning freedom of establishment (now Article 49 TFEU) and, as the case may be, also concerning the free movement of capital (Article 67 EEC/EC until 1993, now Articles 63 TFEU to 65 TFEU) to be interpreted as meaning that they preclude a provision which excludes the set-off and refund of corporation tax on dividends of second and third-tier subsidiaries which are exempted from tax in the country of the subsidiary and which are (re)distributed to the German parent company and likewise exempted from tax in Germany, but in the case of purely domestic situations, as the case may be by means of the set-off of corporation tax on the second-tier subsidiary’s dividends in the hands of the subsidiary and the set-off of corporation tax on the subsidiary’s dividends in the hands of the parent company, enables a refund in the event of a loss by the parent company? (4) If the provisions on the free movement of capital are also applicable, a further question, depending on the reply to question 2, arises with regard to the Canadian dividends: Is the present Article 64(1) TFEU to be understood as meaning that it permits the application by the Federal Republic of Germany of German legislation, and provisions of double taxation conventions, which have remained unchanged in substance since 31 December 1993 and, therefore, that it permits the continuing exclusion of the offsetting of Canadian corporation tax on dividends exempted from tax in Germany?’
Article 6(4) of Regulation No 341/2007 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic and certain other agricultural products imported from third countries must be interpreted as not precluding, in principle, transactions by which an importer, which holds reduced rate import licences, purchases goods outside the European Union from an operator, itself a traditional importer within the meaning of Article 4(2) of that regulation, but having exhausted its own reduced rate import licences, then resells them to that operator after having imported them into the European Union. However, such transactions constitute an abuse of rights where they are artificially created with the essential aim of benefiting from the preferential rate of duty. The checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue.

(see para. 40, operative part)
General Rule 2(a) for the interpretation of the Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff must be interpreted as meaning that an upper, an outer sole and an inner sole, as an article presented unassembled having the essential character of footwear, come under heading 6404 of the combined nomenclature where, following their import, a counter must be inserted into the upper and the outer sole and the upper must be roughed for the purpose of their assembly.

The Explanatory Notes to the Harmonised Commodity Description and Coding System which are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation, state that articles presented unassembled or disassembled means articles the components of which are to be assembled, provided only assembly operations are involved. In addition, the different components are not to be subjected to any further working operation for completion into the finished state.

As regards the roughing of the upper and the outer sole and the insertion of the counter, none of these operations can be regarded as a working operation for completion into the finished state of footwear.

(see paras 39, 40, 41, 47, 49, 52, operative part)
Articles 50 and 203 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 648/2005, must be interpreted as meaning that an article left for temporary storage must be deemed to have been removed from customs supervision if it is declared for an external Community transit procedure, but it does not in fact leave the storage facility and is not presented to the customs office at the place of destination, although the transit documents have been presented there.

The temporary removal of the transit document from the goods listed therein must be characterised as a removal of those goods from customs supervision. Such removal does constitute an act which has the effect of preventing the competent customs authority, even if only temporarily, from having access to goods under customs supervision and carrying out the controls prescribed by EU customs legislation.

Similarly, removal of goods from customs supervision requires only that certain objective conditions be met, such as the absence of the goods from the approved place of storage at the time when the customs authorities intend to carry out an examination of them. It is therefore sufficient, for there to be ‘removal from customs supervision’, for the goods in question to have been objectively removed from possible controls, whether or not such controls have actually been carried out by the competent authority.

(see paras 30-33, operative part 1)
Case C‑52/13

Posteshop SpA — Divisione Franchising Kipoint

v

Autorità Garante della Concorrenza e del Mercato

and

Presidenza del Consiglio dei Ministri

(Request for a preliminary ruling from the Consiglio di Stato)

‛Reference for a preliminary ruling — Directive 2006/114/EC — Concepts of ‘misleading advertising’ and ‘comparative advertising’ — National legislation providing that misleading advertising and unlawful comparative advertising are two separate unlawful acts’

Summary — Judgment of the Court (Eighth Chamber), 13 March 2014

Approximation of laws — Misleading advertising and comparative advertising — Directive 2006/114 — Scope — Protection afforded to traders — Concepts of ‘misleading advertising’ and ‘unlawful comparative advertising’ — Uniform interpretation of EU law — Differences between the various language versions — General scheme and purpose of the rules in question as a reference point — Autonomous nature of the infringements

(European Parliament and Council Directive 2006/114)

With regard to the protection afforded to traders, Directive 2006/114 concerning misleading and comparative advertising must be interpreted as referring to misleading advertising and unlawful comparative advertising as two independent infringements and to the effect that, in order to prohibit and penalise misleading advertising, it is not necessary that that latter at the same time should constitute unlawful comparative advertising.

(see para 28, operative part)
On the Community market, where a geographical designation has not obtained a registration, in the light of the provisions of Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Regulation No 535/97, it cannot enjoy the protection provided for by that regulation. Accordingly, as is apparent from the twelfth recital in the preamble to Regulation No 2081/92 and Article 13(1) thereof, in order to enjoy the protection provided for by it, that regulation introduced an obligation to obtain Community registration of geographical designations.

Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Regulation No 535/97, must be interpreted as meaning that it does not afford protection to a geographical designation which has not obtained a Community registration, but that that geographical designation may be protected, should the case arise, under national legislation concerning geographical designations relating to products for which there is no specific link between their characteristics and their geographical origin, provided, however, that, first, the implementation of that legislation does not undermine the objectives pursued by Regulation No 2081/92 and, secondly, it does not contravene the principle of the free movement of goods under Article 28 EC, matters which fall to be determined by the national court. Whilst the aim of Regulation No 2081/92 is to provide a uniform and exhaustive system of protection, that exclusivity does not preclude, however, the application of rules governing the protection of geographical designations which fall outside its scope.

Furthermore, as regards the first condition regarding compliance with Regulation No 2081/92, the protection granted by that set of rules must not have the effect of guaranteeing to consumers that products which enjoy that protection have a particular quality or characteristic, but only of ensuring that those products do in fact originate from the geographical area referred to. As regards the second condition, concerning compatibility with Article 28 EC, it is for the national court to satisfy itself, first, that the application of the national legislation in question does not have the purpose or effect of guaranteeing to consumers that products marketed under a specific geographic designation have a particular quality or characteristic and, secondly, that the implementation of that legislation pursues an overriding requirement in the public interest, is carried out in a non-discriminatory manner, is suitable for securing the attainment of the objective pursued and does not go beyond what is necessary in order to attain that objective.

(see paras 28, 33, 34, 38, 39, operative part)
The term ‘medicaments’ within the meaning of tariff heading 3004 of the Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1549/2006, includes food preparations intended exclusively to be administered enterally (by means of a stomach tube) under medical supervision to persons who are receiving medical care, provided that that product is administered, as part of the control of the disease or ailment affecting them, in order to prevent or control their malnutrition.

A product which, on account of its objective characteristics and properties, in particular the fact that it is put up for retail sale, that it is used within a medical environment and that it is intended to be administered to patients through a stomach tube under medical supervision with the aim of preventing or treating malnutrition connected with diseases or ailments, is clearly intended for medical use, and is therefore prepared for therapeutic or prophylactic uses within the meaning of tariff heading 3004.

(see paras 21, 30, 31, operative part)
Keywords

Summary



Keywords

1. Approximation of laws — Trade marks — Directive 2008/95 — Service marks — Concept of ‘services’ — Community concept — Uniform interpretation

(European Parliament and Council Directive 2008/95)

2. Approximation of laws — Trade marks — Directive 2008/95 — Service marks — Concept of ‘services’ — Services of bringing together services — Inclusion

(European Parliament and Council Directive 2008/95, Art. 2)

3. Approximation of laws — Trade marks — Directive 2008/95 — Identification of the goods or services concerned by the mark — Requirements of clarity and precision — Service of bringing together services

(European Parliament and Council Directive 2008/95)

4. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — General or hypothetical questions — Question abstract and purely hypothetical in character having regard to the subject-matter of the dispute in the main proceedings — Inadmissibility

(Art. 267 TFEU)

Summary

1. See the text of the decision.

(see para. 32)

2. Services rendered by an economic operator which consist in bringing together services so that the consumer can conveniently compare and purchase them may come within the concept of ‘services’ referred to in Article 2 of Directive 2008/95 relating to trade marks.

(see para. 40, operative part 1)

3. Directive 2008/95 relating to trade marks requires an application for registration of a trade mark with respect to a service which consists of bringing together services to be formulated with sufficient clarity and precision so as to allow the competent authorities and other economic operators to know which services the applicant intends to bring together.

(see para. 53, operative part 2)

4. A request for a preliminary ruling brought by a national court must be rejected where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main proceedings or its purpose.

(see para. 55)
As regards anti-competitive conduct caught by Article 81 EC, certain types of coordination between undertakings reveal, by their very nature, a sufficient degree of harm to the proper functioning of normal competition that it may be found that there is no need to examine their effects. Consequently, certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 81(1) EC, to prove that they have actual effects on the market.

Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent.

In order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition by object, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account.

It cannot be accepted that the concept of restriction of competition by object must not be interpreted restrictively. The concept of restriction of competition by object can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects, otherwise the Commission would be exempted from the obligation to prove the actual effects on the market of agreements which are in no way established to be, by their very nature, harmful to the proper functioning of normal competition. The fact that the types of agreements covered by Article 81(1) EC do not constitute an exhaustive list of prohibited collusion is, in that regard, irrelevant.

(see paras 49-54, 57, 58)
Keywords

Summary



Keywords

1. Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 — Detention for the purpose of removal — National legislation under which such nationals may be detained in prison accommodation together with ordinary prisoners — Not permissible — Consent of the nationals to such detention — No effect

(European Parliament and Council Directive 2008/115, Art. 16(1), second sentence)

2. Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 — Purpose

(European Parliament and Council Directive 2008/115, recital 17 and Art. 1)

Summary

1. The second sentence of Article 16(1) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as not permitting a Member State to detain a third-country national for the purpose of removal in prison accommodation together with ordinary prisoners even if the third-country national consents thereto.

It is clear from the wording of that provision that it lays down an unconditional obligation requiring illegally staying third-country nationals to be kept separated from ordinary prisoners when a Member State cannot provide accommodation for those third-country nationals in specialised detention facilities. That obligation is not coupled with any exception and constitutes a guarantee of observance of the rights which have been expressly accorded by the EU legislature to those third-country nationals in the context of the conditions relating to detention in prison accommodation for the purpose of removal. The obligation requiring illegally staying third-country nationals to be kept separated from ordinary prisoners, laid down in the second sentence of Article 16(1), is more than just a specific procedural rule for carrying out the detention of third-country nationals in prison accommodation and constitutes a substantive condition for that detention, without observance of which the latter would, in principle, not be consistent with the directive. In this context, a Member State cannot take account of the wishes of the third-country national concerned.

(see paras 17, 19, 21-23, operative part)

2. See the text of the decision.

(see para. 20)
It follows from Article 18(3) of Regulation No 1386/2002 laying down detailed rules for the implementation of Regulation No 1164/94, which refers expressly to Article H(2) of Annex II to Regulation No 1164/94 establishing a Cohesion Fund, as amended by Regulations No 1264/1999 and 1265/1999, that the Commission has, by virtue of Article H(2), a three-month period to take a decision on financial corrections, and that period begins to run from the date of the formal hearing with the Member State. Whilst it is true that the rules applicable to the period from 1994 to 1999 did not set a time-limit in that regard, as from 2000, the Commission is nevertheless obliged to comply with the legal time-limit for adopting a decision on financial corrections, and the conditions for that time-limit vary depending on the applicable rules.

Furthermore, so far as concerns decisions with important budgetary implications, it is in the interests both of the Member State concerned and of the Commission that the length of the procedure for financial corrections be predictable, which implies the setting of a predetermined time-limit for adopting the final decision. Failing to comply with the time-limit laid down for adopting a decision on financial corrections is not compatible with the general principle of sound administration.

(see paras 62, 75, 82, 88, 94-97)
Joined Cases C‑256/13 and C‑264/13

Provincie Antwerpen

v

Belgacom NV van publiek recht

and

Mobistar NV

(Requests for a preliminary ruling from the hof van beroep te Antwerpen)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/20/EC — Article 6 — Conditions attached to the general authorisation and to the rights of use for radio frequencies and for numbers, and specific obligations — Article 13 — Fees for rights of use and rights to install facilities — Regional legislation making undertakings liable to pay a tax on places of business’

Summary — Judgment of the Court (Third Chamber), 4 September 2014

Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Fees for rights to use and to install facilities — Concept — Tax on establishments of cellular telephone communication masts, pylons or antennae — Not included

(European Parliament and Council Directive 2002/20, Arts 6 and 13)

Articles 6 and 13 of Directive 2002/20 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) must be interpreted as not precluding operators providing electronic communications networks or services from being subject to a general tax on establishments, on account of the presence on public or private property of cellular telephone communication masts, pylons or antennae which are necessary for their activity.

Since the chargeable event giving rise to the tax is not linked to the granting of rights of use for radio frequencies or rights to install facilities within the meaning of Article 13 of the Directive 2002/20, such a tax does not constitute a fee within the meaning of Article 13 and, consequently, does not come within the scope of that directive. In that regard, the term ‘facilities’ and the expression ‘install’, used in Article 13 of that directive, refer to the physical infrastructure enabling provision of electronic communications networks and services and to their physical installation on the public or private property concerned, respectively.

(see paras 33, 37, 38, operative part)