ddrg/super_eurlex huggingface dataset:
2.

Do the free movement of capital under Articles 56(1) EC and 58(1)(a) and (3) EC, the principle of effectiveness and the principle of ‘effet utile’ preclude legislation — like Paragraph 36(2), second sentence, point 3, fourth sentence, (b) of the EStG (in the version in force in the relevant years) — under which credit for corporation tax requires the submission of a corporation tax certificate within the meaning of Paragraphs 44 et seq. of the KStG (in the version in force in the relevant years), which must contain, inter alia, the amount of corporation tax deductible and the composition of the payment under the various parts of the capital and reserves available for distribution on the basis of a special division of capital and reserves within the meaning of Paragraph 30 of the KStG (in the version in force in the relevant years), although it is in practice impossible to determine the foreign corporation tax actually paid which is to be set off and to provide the certificate in respect of foreign dividends?
3.

Must Articles 43 EC and 49 EC be interpreted as precluding legislation, such as that resulting from Law No 71-498 of 29 June 1971 and Decree No 2004-1463 of 23 December 2004, as amended, which restricts enrolment on the national register and the title of expert approved by the Cour de cassation to professionals who have been enrolled for at least three years on a register maintained by a French cour d’appel?
3.

Must Articles 43 EC and 49 EC be interpreted as precluding legislation, such as that resulting from Law No 71-498 of 29 June 1971 and Decree No 2004-1463 of 23 December 2004, as amended, which makes enrolment on a register maintained by a cour d’appel subject to conditions relating to age, competence, character and independence, and which does not take into account the fact that the applicant has already been recognised as an expert by the courts of his State of origin or introduce other arrangements for assessing his competence?
1.

With regard to Article 220(2)(b) of the Customs Code (1) First ground of appeal: When applying Article 220(2)(b) of the Customs Code, the Court of First Instance failed to take account of the interpretation of that article by the Court of Justice in its judgment of 9 March 2006, (2) in particular with regard to the substance of the burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter, a burden which, according to that judgment, is not only unequivocally that of the customs authority seeking recovery but must also be satisfied by means of objective, original documentary evidence. The Court of First Instance thereby misapplied Article 220(2)(b) of the Customs Code and thus misapplied, and therefore infringed, Community law. Second ground of appeal: The Court of First Instance, when appraising the evidence submitted to it, misconstrued that evidence in all respects, as that evidence does not satisfy the requirements of Article 220(2)(b) of the Customs Code, as interpreted and clarified by the Court of Justice in its judgment of 9 March 2006. (3) The Court of First Instance thereby erred in law in its characterisation of the evidence and therefore infringed Community law. (4) Moreover, when appraising the evidence, the Court of First Instance did not rule coherently, but inconsistently in that, on the one hand, it regarded that evidence as sufficient to satisfy the Commission’s burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter but, on the other hand, in regard to the same rules, rejected it as insufficient to satisfy the proof required of the appellant that the Thai customs authorities knew, or at least reasonably ought to have known, that the goods were not eligible for preferential treatment. The Court of Justice should rule that the errors of the Court of First Instance when considering and appraising the documents adduced as evidence constitute a failure to state reasons. (5)
2.

Is the measure laid down by Paragraph 269(1) of the new VAT Law, according to which, if the requirements set out in the previous question are complied with, rights and obligations must be determined and applied in accordance with the provisions of that Law, even where they arose before the entry into force thereof, within the limitation period, compatible with the general principles of Community law, and, in particular, is it objectively justifiable, reasonable, proportionate and consistent with the principle of legal certainty?
2.

If the reply to the first question is in the affirmative: 2.1. If a national system of equitable remuneration for private copying existed before the entry into force of Directive 2001/29/EC, must the national provisions be interpreted ‘in conformity’ with the new concept of ‘fair compensation’ for private copying following the entry into force of Directive 29/2001? 2.2. Must the scope of the private copying exception in Article 5(2)(b) of Directive 2001/29, and the criteria set out in recital 35 in the preamble to the directive, be taken into account in order to determine which devices are subject to the payment of fair compensation and the amount thereof? If that is the case, would it be compatible with the Community concept of ‘fair compensation for private copying’ (a) to establish a liability to pay that compensation in respect of devices intended for personal and professional use other than ‘private copying’ and/or (b) to set a flat-rate payment which does not take account of whether the devices are used for the purposes of private copying and the harm which is liable to result from such use, thereby making situations where there is no harm or where the harm is negligible also subject to the payment of compensation? 2.3. Is a system which, by setting a private copying limit, establishes a general liability to pay fair compensation on a certain category of equipment or media (for example, recordable CD-R and DVD-R data computer disks), irrespective of whether they are purchased by natural persons for private use or by natural persons for professional use, in order to generate and store their own data or in compliance with legal obligations, or by legal persons who do not benefit from the private copying exception in any circumstances, compatible with Article 5(2)(b) of Directive 2001/29?
EN Official Journal of the European Union C 24/27

Reference for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 10 November 2009 — Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la Concurrence, Ministre de l’Economie de l’Industrie et de l’Emploi

(Case C-439/09)

2010/C 24/49

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Applicant: Pierre Fabre Dermo-Cosmétique SAS

Defendants: Président de l’Autorité de la Concurrence, Ministre de l’Economie de l’Industrie et de l’Emploi

Question referred

Does a general and absolute ban on selling contract goods to end users via the Internet, imposed on authorised distributors in the context of a selective distribution network, in fact constitute a ‘hardcore’ restriction of competition by object for the purposes of Article 81(1) EC which is not covered by the block exemption provided for by Regulation No 2790/1999 (1) but which is potentially eligible for an individual exemption under Article 81(3) EC?

(1) Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336 p. 21)
EN Official Journal of the European Union C 24/29

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium), lodged on 17 November 2009 — Koninklijke Philips Electronics NV v Lucheng Meijing Industrial Company Ltd and Others

(Case C-446/09)

2010/C 24/54

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Antwerpen

Parties to the main proceedings

Claimant: Koninklijke Philips Electronics NV

Defendants: Lucheng Meijing Industrial Company Ltd and Others

Question referred

Does Article 6(2)(b) of Regulation (EC) No 3295/94 (1) of 22 December 1994 (the old Customs Regulation) constitute a uniform rule of Community law which must be taken into account by the court of the Member State which, in accordance with Article 7 of the Regulation, has been approached by the holder of an intellectual-property right, and does that rule imply that, in making its decision, the court may not take into account the temporary storage status/transit status and must apply the fiction that the goods were manufactured in that same Member State, and must then decide, by applying the law of that Member State, whether those goods infringe the intellectual-property right in question?

(1) Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods (OJ 1994 L 341, p. 8).
EN Official Journal of the European Union C 24/29

Reference for a preliminary ruling from the Bundesarbeitsgericht (Germany), lodged on 18 November 2009 — Reinhard Prigge, Michael Fromm and Volker Lambach v Deutsche Lufthansa AG

(Case C-447/09)

2010/C 24/55

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Appellants: Reinhard Prigge, Michael Fromm and Volker Lambach

Respondent: Deutsche Lufthansa AG

Question referred

Must Article 2(5), Article 4(1) and/or Article 6(1), first sentence, of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) and/or the general Community-law principle which prohibits discrimination on grounds of age be interpreted as precluding rules of national law which recognise an age-limit of 60 for pilots established by collective agreement for the purposes of ensuring air safety?

(1) OJ 2000 L 303, p. 16.
EN Official Journal of the European Union C 37/21

Action brought on 1 December 2009 — European Commission v Portuguese Republic

(Case C-493/09)

2010/C 37/25

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: R. Lyal and M. Afonso, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, by taxing the dividends obtained by non-resident pension funds at a rate higher than the dividends obtained by pension funds resident in Portuguese territory, the Portuguese Republic has failed to fulfil its obligations under Article 63 TFEU and Article 40 of the EEA Agreement.

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Under the provisions of the Portuguese Estatuto dos Benefícios Fiscais (Tax Relief Regulations) and the Código do Imposto sobre o Rendimento das Pessoas Colectivas (the Corporation Tax Code), the dividends paid to pension funds set up and operating in accordance with the Portuguese legislation are wholly exempt from the imposto sobre o rendimento das pessoas colectivas (corporation tax). By contrast, the dividends paid to non-resident pension funds are subject to corporation tax at a rate of between 10 % and 20 %, depending on whether there is a bilateral agreement between Portugal and the State of residence and the terms thereof. That corporation tax is collected by being withheld at source.

The detrimental difference in treatment by the Portuguese tax legislation of the non-resident pension funds makes the investment by those funds in Portuguese companies less profitable and attractive. The tax rules referred to therefore constitute a restriction prohibited by Article 63 TFEU and by Article 40 of the EEA Agreement.

The discriminatory treatment of non-resident pension funds, which has harmful consequences on the competitiveness of the financial markets of the European Union and on the revenue from the investments made by the pension funds, cannot be justified by any of the grounds put forward by the Portuguese Republic.
1.

Distortion of the pleas in law, errors in law and irrational and contradictory reasoning, with reference to the identification of the aid recipient and the assessment of the Commission’s discretion for the purpose of defining the aid recipient. By its first ground of appeal, the appellant, AceaElectrabel Produzione SpA (‘AEP’ or ‘the appellant’) complains that the judgment is seriously flawed, insofar as the Court of First Instance rejected the plea in law relating to the failure properly to identify the recipient of the aid, which is the subjective condition for the application to the case in question of the principle established in the Deggendorf case-law (according to which, the grant of new aid which in itself is judged to be compatible with the common market may, in certain circumstances, be suspended until previous unlawful aid paid to the same undertaking has been reimbursed). First of all, the appellant disputes the finding that that plea is inadmissible insofar as it relates to infringement of Article 88 of Regulation (EC) No 659/99. (1) AEP submits that the Court of First Instance distorted that part of the plea, which was intended by the appellant simply to indicate that the misidentification of the aid recipient resulted from one of the characteristic defects of the administrative measure. By stating that arguments alleging infringement of the rules governing the recovery of aid have no bearing on the case, the Court of First Instance demonstrated that it had distorted the arguments put forward in support of that part of the plea in law in question. Moreover, the appellant challenges the judgment insofar as it failed to declare the decision unlawful, notwithstanding the serious error of identifying AEP (the recipient of the new aid) with the ACEA Group (the recipient of the aid which was not reimbursed), based on the incorrect, illogical and contradictory application of the concept of an economic unit of a group of undertakings developed in Community case-law. The appellant disputes that such a concept can be applied to the case of a joint venture controlled jointly by two separate groups (as is the case with AEP), since the established case-law on economic units of undertakings refers only to cases involving a number of undertakings controlled solely by a single entity. The error is compounded insofar as the Court of First Instance regarded as irrelevant the fact that 70 % of AEP’s capital is in a different economic group, which has nothing whatsoever to do with the recipient of the aid which was not reimbursed. The Court of First Instance also erred in its application of the concept of a functionally autonomous undertaking, since it stated that the appellant cannot be regarded as functionally autonomous because it is subject to the joint control of two undertakings.
1.

The CFI erred in law by holding, in this case, that there are no exceptional circumstances which give rise to a legitimate expectation that the tax measure at issue is lawful, so as to preclude an order to recover the aid in accordance with Article 14(1) of Regulation No 659/1999 (1) which relates to the principle of the protection of legitimate expectations. The CFI distorted the issues in the case and infringed the rule that the parties should be heard. It also misinterpreted the case-law concerning the duty to give reasons for a decision. The Court of First Instance erred in law by failing to comply with the procedural rules relating to the assessment of evidence by disregarding the substantive content of documents submitted for the purposes of the written procedure. Neither the formal difference between the tax measure at issue and the measure which is the subject of Decision 93/337 (2), nor the fact that the Commission could have justified the selectivity criterion on information other than that which is explicitly mentioned in Decision 93/337, nor the finding of incompatibility in Decision 93/337, constitute sufficient reasons in law for the CFI not to determine whether there existed an exceptional circumstance that by itself or in combination with other circumstances in this case could preclude the Commission from ordering the recovery of the aid to which the contested decision relates. By holding that the measures at issue in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 are not analogous to the tax measure at issue for technical tax reasons and the because of amount of the subsidy, the CFI has distorted the issues between the parties, has disregarded the rule that the parties should be heard and has clearly misinterpreted the case-law specifically relating to the duty to state reasons. The CFI erred in law by holding that the Commission's position with respect to the tax exemption and/or the 1993 tax credit — which, as is clear from the from the pleadings, has not been assessed by the CFI, contrary to the Rules of Procedure — does not constitute an exceptional circumstance which could have justified some kind of legitimate expectation that the tax measure was lawful which would have precluded the recovery of the aid under Article 14(1) of Regulation on the ground that it would be contrary to the principle of the protection of legitimate expectations.
EN Official Journal of the European Union C 51/24

Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 21 December 2009 — Skandinaviska Enskilda Banken AB Momsgrupp v Skatteverket

(Case C-540/09)

2010/C 51/40

Language of the case: Swedish

Referring court

Regeringsrätten

Parties to the main proceedings

Applicant: Skandinaviska Enskilda Banken AB Momsgrupp

Defendant: Skatteverket

Question referred

Is Article 13B of the Sixth VAT Directive (Article 135(1) of the Council Directive on a common system of value added tax (1)) to be interpreted as meaning that the tax exemptions provided for therein also include services (underwriting) which involve a credit institution providing, for consideration, a guarantee to a company which is about to issue shares, where under that guarantee the credit institution undertakes to acquire any shares which are not subscribed within the period for share subscription?

(1) Council Directive 77/388/EEC (OJ L 145, p. 1).
2.

If the answer to question 1 is that such a benefit is to be treated as a sickness benefit: (a) Is a person, such as the claimant's mother, who has definitively ceased all employed or self-employed activity by virtue of retirement nevertheless an ‘employed person’ for the purposes of Article 19 by reason of their former employed or self-employed activity, or do Articles 27 to 34 (pensioners) contain the applicable rules? (b) Is a person, such as the claimant's father, who has not undertaken an employed or selfemployed activity since 2001, nevertheless an ‘employed person’ for the purposes of Article 19 by reason of their former employed or self-employed activity? (c) Is a claimant to be treated as a ‘pensioner’ for the purposes of Article 28 by virtue of the award of a benefit acquired pursuant to Article 95b of Regulation 1408/71, notwithstanding the facts that: (i) the claimant in question has never been an employed person under Article l (a) of Regulation 1408/71; (ii) the claimant has not reached state retirement age; and (iii) the claimant only comes within the personal scope of Regulation 1408/71 as a family member? (d) Where a pensioner falls within Article 28 of Regulation 1408/71, can a family member of that pensioner who has at all times resided with and in the same State as the pensioner claim, pursuant to Article 28.1, as read with Article 29, a cash sickness benefit from the competent institution determined by Article 28.2 where such benefit is (if due) payable to the family member (and not payable to the pensioner)? (e) If applicable (by reason of the answers to (a) to (d) above), is the application of a condition of national social security law limiting the initial acquisition of entitlement to a sickness benefit to those having completed a requisite period of past presence within the competent Member State within a defined prior period compatible with the provisions of Articles 19 and/or 28 of Regulation 1408/71?
2.

In the event that ‘foodstuffs for human consumption’ within the meaning of Category 1 of Annex H to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes also covers dishes or meals for immediate consumption: Is the first subparagraph of Article 6(1) 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 to be interpreted as covering the sale of freshly prepared dishes or meals which the customer does not take away, but consumes on the spot making use of facilities for consumption such as counters, tables for standing at or the like?
EN Official Journal of the European Union C 113/15

Reference for a preliminary ruling from the Juzgado de lo Contencioso Administrativo Número 3 de Almería (Spain) lodged on 2 October 2009 — Águeda María Sáenz Morales v Consejería para la Igualdad y Bienestar Social

(Case C-389/09)

2010/C 113/22

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso Administrativo Número 3 de Almería

Parties to the main proceedings

Applicant: Águeda María Sáenz Morales

Defendant: Consejería para la Igualdad y Bienestar Social

By Order of 20 January 2010 the Court of Justice (Sixth Chamber) declared the reference for a preliminary ruling manifestly inadmissible.
2.

If the answer to the previous question is in the affirmative: Must Article 12 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (2) be interpreted as meaning that the imposition of the abovementioned obligation by the national legislature is conditional upon the consent of, or at least the lack of any objection by, the other telephone service provider or its subscribers to the transmission of the data?
1.

Is Article 5, in conjunction with Article 7, of First Council Directive 89/104/EEC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks to be interpreted in such a way that company B is guilty of an infringement of a trade mark if it fills gas bottles which originate from company A with gas which it then sells, where the following circumstances apply: 1. A sells gas in so-called composite bottles with a special shape, which is registered as such, that is to say, as a shape trade mark, under a Danish trade mark and an EC trade mark. A is not the proprietor of those shape trade marks but has an exclusive licence to use them in Denmark and has the right to take legal proceedings in respect of infringements in Denmark. 2. On first purchase of a composite bottle filled with gas from one of A’s dealers the consumer also pays for the bottle, which thus becomes the consumer’s property. 3. A refills the composite bottles by a procedure under which the consumer goes to one of A’s dealers and, on payment for the gas, has an empty composite bottle exchanged for a similar one filled by A. 4. B’s business consists in filling gas into bottles, including composite bottles covered by the shape trade mark referred to in 1., by a procedure under which consumers go to a dealer associated with B and, on payment for the gas, can have an empty composite bottle exchanged for a similar one filled by B. 5. When the composite bottles in question are filled with gas by B, adhesive labels are attached to the bottles indicating that the filling was undertaken by B?