ddrg/super_eurlex huggingface dataset:
Case C-137/02

Finanzamt Offenbach am Main-Land

v

Faxworld Vorgründungsgesellschaft Peter Hünninghausen und Wolfgang Klein GbR

(Reference for a preliminary ruling from the Bundesfinanzhof)

(Reference for a preliminary ruling – Interpretation of the Sixth VAT Directive – Right of a Vorgründungsgesellschaft (civil-law partnership the object of which is to prepare the means necessary for the activities of a capital company yet to be formed) to deduct input VAT – Transfer for consideration of the totality of those means upon formation of the capital company – Transfer not subject to VAT in consequence of the exercise by the Member State concerned of the option provided for in Article 5(8) of the Sixth VAT Directive)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Civil-law partnership founded for the sole purpose of setting up a capital company – Transfer of the totality of its assets to that capital company once founded – Member State not regarding such a transfer as a supply of goods – Right to deduct

(Council Directive 77/388, Arts 5(8), 6(5) and 17(2))

A partnership established for the sole purpose of founding a capital company is entitled to deduct the input tax paid on supplies of goods and services where its only output transaction in the performance of its object was to effect by formal act the transfer for consideration of the supplies obtained to that capital company once founded and where, because the Member State concerned has exercised the options provided for in Articles 5(8) and 6(5) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7, a transfer of a totality of assets is not deemed to be a supply of goods or services.

Even if that partnership does not intend to effect itself taxable operations, its sole object being to prepare the activities of the capital company, the tax which it wishes to deduct relates none the less to supplies acquired for the purpose of effecting taxable transactions, even though those transactions are only the planned transactions of the capital company.

(see paras 41, 43, operative part)
Case C-247/02

Sintesi SpA

v

Autorità per la Vigilanza sui Lavori Pubblici

(Reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia)

(Directive 93/37/EEC – Public works contracts – Award of contracts – Right of the contracting authority to choose between the criterion of the lowest price and that of the most economically advantageous tender)

Summary of the Judgment

Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Award of contracts – Criteria for award – National rules which impose a requirement that the contracting authorities use only the criterion of the lowest price – Not permissible

(Council Directive 93/37, Art. 30(1))

Article 30(1) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts is to be interpreted as meaning that it precludes national rules which, for the purpose of awarding public works contracts following open or restricted tendering procedures, impose a general and abstract requirement that the contracting authorities use only the criterion of the lowest price.

Such rules deprive the contracting authorities of the possibility of taking into consideration the nature and specific characteristics of the contracts in question, taken in isolation, by choosing for each of them the criterion most likely to ensure free competition and thus to ensure that the best tender will be accepted.

(see paras 40, 42, operative part)
Case C-200/02

Kunqian Catherine Zhu and Man Lavette Chen

v

Secretary of State for the Home Department

(Reference for a preliminary ruling from the Immigration Appellate Authority)

(Right of residence – Child with the nationality of one Member State but residing in another Member State – Parents nationals of a non-member country – Mother’s right to reside in the other Member State)

Summary of the Judgment

Citizenship of the European Union – Right to move and reside freely in the territory of the Member States – Directive 90/364 – Minor who is a national of a Member State, is covered by sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor and who is that minor’s primary carer – Right of residence, both for the minor and for the parent, in another Member State – Conditions for the minor to gain nationality – Not relevant

(Art. 18 EC; Council Directive 90/364)

Article 18 EC and Council Directive 90/364 on the right of residence confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.

In that respect, the condition concerning the sufficiency of resources laid down in Directive 90/364 cannot be interpreted as meaning that the minor must possess those resources personally and may not use for that purpose those of a family member. Such an interpretation would add to that condition a requirement as to the origin of the resources which, not being necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States, would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and of residence upheld by Article 18 EC.

In addition, the application of the Community provisions at issue cannot be refused to the persons concerned on the ground that the parent who is the primary carer has created, by means of a stay in a Member State, a situation in which the child expected would be able to acquire the nationality of another Member State in order thereafter to secure for the child and for him or herself a long-term right to reside. Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality and it is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.

(see paras 33, 36-37, 39, 47, operative part)
Case C-19/02

Viktor Hlozek

v

Roche Austria Gesellschaft mbH

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Social policy – Men and women – Equal pay – Pay – Concept – Bridging allowance (‘Überbrückungsgeld’) provided for by a works agreement – Social plan drawn up as part of an operation to restructure an undertaking – Benefit granted to workers having reached a certain age at the time of their dismissal – Benefit granted from a different age according to the sex of the dismissed workers – Account taken of national statutory retirement age, different according to sex)

Summary of the Judgment

Social policy – Men and women – Equal pay – Pay – Concept – Bridging allowance provided for by a social plan and paid to dismissed workers – Included – Age at which entitlement to the allowance arises – Age different according to sex – Permitted

(Art. 141 EC; Council Directive 75/117, Art. 1)

A bridging allowance originating from a social plan which was the result of an agreement between management and labour as part of an operation to restructure an undertaking, owed by that undertaking to workers who have reached a certain age at the time of their dismissal, constitutes a benefit granted in connection with the employment relationship and therefore falls under the concept of ‘pay’ within the meaning of Article 141 EC and Article 1 of Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.

Those provisions do not preclude the application of a social plan providing for a difference in the treatment of male and female workers in terms of the age at which they are entitled to a bridging allowance, since, under the national statutory scheme governing early retirement pensions, they are in different situations with regard to the factors relevant to the grant of that allowance.

(see paras 38-39, 48, 51, operative part)
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Freedom of movement for persons – Workers – Equal treatment – Remuneration – Income tax – Income of non-residents who do not receive income taxable in the Member State of residence subject to deduction at source excluding any tax allowance linked to the personal circumstances of the taxpayer – Not permissible

(Art. 39 EC)

Summary

Article 39 EC precludes a Member State’s legislation from providing that

– natural persons who are not regarded as being resident for tax purposes in that Member State, but who receive income there from employment, are subject to taxation levied at source such that the basic allowance or any other allowance or deduction linked to the taxpayer’s personal circumstances is not granted,

– whereas taxpayers resident in that State are entitled to such allowances or deductions at the time of ordinary assessment to tax on their income received in that State and abroad,

– when the persons not resident in the State of taxation have had, in their own State of residence, only income which, by its nature, is not subject to income tax.

(see para. 24, operative part)
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Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Medicinal products covered by a marketing authorisation — Obligation to submit a certified copy or a certificate of attestation of that authorisation — Not permissible

Summary

The imposition on traders importing or distributing in France medicinal products which are already covered by a marketing authorisation for the French or Community market a requirement that they submit, when first so requested by the monitoring authorities, either a certified copy issued by the national health safety agency of the national marketing authorisation or of the registration of the medicinal product, or a document issued by that Agency certifying that the imported medicinal product has obtained a marketing authorisation issued by the European Community, constitutes a failure by a Member Stare to fulfil its obligations under Article 28 EC.

see operative part
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Community trade mark – Review procedures – Review before the Community Courts – Procedural role of the Office – Opposition proceedings – No power to alter the terms of the dispute before the Court of First Instance

(Rules of Procedure of the Court of First Instance, Art. 133(2); Council Regulation No 40/94, Art. 63(2))

Summary

In proceedings concerning an action against a decision of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) on an opposition to registration of a Community mark based on the likelihood of confusion with an earlier mark, the Office does not have the power to alter before the Court of First Instance the terms of the dispute, as delimited in the respective claims and allegations of the applicant for registration and of the opposing party.

Although under Article 133(2) of the Rules of Procedure of the Court of First Instance, the Office is the defendant in proceedings before the Court of First Instance, the proceedings before that Court are intended to resolve a dispute between the applicant for registration and the holder of an earlier mark.

Therefore, any finding that the Office has the power to alter the terms of the dispute before the Court of First Instance defeats the legitimate expectation of the party which was successful before the Board of Appeal, in so far as the purpose of proceedings before the Court of First Instance is, pursuant to Article 63(2) of Regulation No 40/94, to review the legality of the decision of the Board of Appeal.

(see paras 26-27, 36)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions laid down by the Sixth Directive – Exemption of transactions of leasing or letting of immovable property – Taxpayers’ right of option – Right to deduct conditional on obtaining prior approval – Whether permissible

(Council Directive 77/388, Art. 13(C))

Summary

The provisions of subparagraph (a) of the first paragraph and of the second paragraph of Article 13(C) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes do not preclude a Member State, which has exercised the power conferred by those provisions to allow taxpayers a right of option for taxation on leasing or letting transactions of immovable property, from adopting legislation which makes full deduction of the input VAT paid conditional upon non-retroactive, prior approval of the tax authorities.

(see para. 30, operative part)
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1. Freedom of movement for persons – Workers – Definition – Member State national employed by an international organisation – Included – Limit – Worker who is a Member State national and spent his entire working life in that Member State

(Art. 39 EC)

2. Member States – Obligations – Duty of genuine cooperation with the Community institutions – Failure to take account of periods of employment within the European Communities for the grant of an early retirement pension under a national scheme – Not permissible

(Art. 10 EC; Staff Regulations, Annex VIII, Art. 11(2))

Summary

1. An official of the European Communities working in a Member State other than his State of origin has the status of a migrant worker. He does not lose his status of worker within the meaning of Article 39(1) EC through occupying a post within an international organisation, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement.

The provisions of the Treaty relating to the free movement of workers, and particularly Article 39 EC, cannot, however, be applied to situations which are wholly internal to a Member State. Accordingly those provisions do not apply to a worker who has spent his entire working life in the Member State of which he is a national, first as an employer and then, up to retirement age, as an official of the European Communities.

(see paras 37, 39-40, 43)

2. Article 10 EC, in conjunction with the Staff Regulations of Officials of the European Communities, must be interpreted as meaning that national legislation which does not permit years of employment completed by a Community citizen in the service of a Community institution to be taken into account for the purposes of entitlement to an early retirement pension under the national scheme is contrary to those provisions.

Such national legislation is likely to impede and therefore to discourage employment within an institution of the European Union, inasmuch as, by accepting employment with such an institution, a worker who was formerly a member of a national pension scheme risks losing the right to benefit under that scheme from an old-age pension to which he would have been entitled had he not accepted that employment.

Such consequences cannot be accepted in the light of the duty of genuine cooperation and assistance which Member States owe the Community and which finds expression in the obligation laid down in Article 10 EC to facilitate the achievement of the Community’s tasks.

(see paras 47-49, operative part)
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1. Approximation of laws – Telecommunications sector – Application of open network provision (ONP) to voice telephony and establishment of a universal service for telecommunications – Directive 98/10 – Directory services – Obligations of a universal service provider – Supply of relevant information on subscribers – Concept of ‘relevant information’

(European Parliament and Council Directive 98/10, Art. 6(3))

2. Approximation of laws – Telecommunications sector – Application of open network provision (ONP) to voice telephony and establishment of a universal service for telecommunications – Directive 98/10 – Directory services – Obligations of a universal service provider – Supply of relevant information on subscribers – Invoicing of costs – Limits

(European Parliament and Council Directive 98/10, Art. 6(3))

Summary

1. Article 6(3) of Directive 98/10 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment must be interpreted as meaning that the words ‘relevant information’, with regard to information on subscribers that the universal service provider must supply, refer only to data relating to subscribers who have not expressly objected to being listed in a published directory and which are sufficient to enable users of a directory to identify the subscribers they are looking for. Those data include in principle the name and address, including postcode, of subscribers, together with any telephone numbers allocated to them by the entity concerned. However, it is open to the Member States to provide that other data are to be made available to users where, in light of specific national circumstances, they appear to be necessary in order to identify subscribers.

(see para. 36, operative part 1)

2. The obligation on universal service providers to provide to third parties on terms which are fair, cost orientated and non-discriminatory the relevant information on subscribers laid down by Article 6(3) of Directive 98/10 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment must be interpreted as meaning that, with regard to data such as the name and address of the persons and the telephone number allocated to them, only the costs of actually making those data available to third parties may be invoiced by the supplier of the universal service. Conversely, with regard to additional data which such a supplier is not bound to make available to third parties, the supplier is entitled to invoice, apart from the costs of making that provision, the additional costs which he has had to bear himself in obtaining the data provided that those third parties are treated in a non-discriminatory manner.

(see para. 42, operative part 2)
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1. Preliminary rulings – Admissibility – Need to supply the Court of Justice with information concerning the factual and legislative context – Extent of the obligation in the field of competition

(Arts 82 EC, 86 EC and 234 EC; Statute of the Court of Justice, Art. 23)

2. Freedom to provide services – Restrictions – Tax on outdoor advertising and bill-posting levied by a local authority – Permissible – Conditions

(Art. 49 CE)

Summary

1. If the Court is to be able to give helpful answers to the questions referred to it, it is necessary for the national court to define the factual and legislative context of the questions it asks or, at the very least, to explain the factual circumstances on which those questions are based.

That need for precision with regard to the factual and legislative context applies especially in the area of competition, which is characterised by complex factual and legal situations.

With regard to the factual context relating to the questions concerning the interpretation of Articles 82 EC and 86 EC, the determination of the materially and geographically relevant market, and the calculation of the market shares held by the various undertakings operating on that market, constitute the starting-point of any appraisal of a situation in the light of competition law.

(see paras 22-23, 25, 27)

2. Article 49 EC must be interpreted as not precluding the levying by a municipal authority of a tax on outdoor advertising and bill-posting which, first, because it is applicable without distinction to any provision of services entailing outdoor advertising and public bill-posting, does not draw any distinction based on the place of establishment of the provider or recipient of the bill-posting services or on the place of origin of the goods or services that form the subject-matter of the advertising messages disseminated and which, second, because it is applied only to outdoor advertising activities involving the use of public space administered by the local authorities and its amount is fixed at a level which may be considered modest in relation to the value of the services provided which are subject to it, is not on any view liable to prohibit, impede or otherwise make less attractive the provision of advertising services to be carried out in the territory of those authorities, including the case in which the provision of services is of a cross-border nature on account of the place of establishment of either the provider or the recipient of the services.

(see paras 37-39, operative part)
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Social security for migrant workers – Old-age and death insurance – Periods to be taken into consideration – National legislation not taking into consideration, for acquiring the right to benefits, periods of insurance completed in the territory of the State as an unemployed person – Whether permissible

(Arts 39 EC and 42 EC; Council Regulation No 1408/71, Art. 45)

Summary

Articles 39 EC and 42 EC and Article 45 of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, must be interpreted as not precluding a national provision which does not allow the competent authorities of a Member State to take into consideration, for the purposes of acquiring the right to a retirement pension under the national scheme, certain periods of insurance completed on the territory of that State by an unemployed worker during which contributions to old-age insurance were paid by the unemployment benefit agency, such periods being taken into consideration solely for the calculation of the amount of that pension.

(see para. 38, operative part)