ddrg/super_eurlex huggingface dataset:
Case C‑139/16

Juan Moreno Marín and Others

v

Abadía Retuerta SA

(Request for a preliminary ruling

from the Audiencia Provincial de Burgos)

(Reference for a preliminary ruling — Trade marks — Directive 2008/95/EC — Article 3(1)(c) — National word mark La Milla de Oro — Grounds for refusal of registration or invalidity — Signs indicating geographical origin)

Summary — Judgment of the Court (Tenth Chamber), 6 July 2017

Approximation of laws—Trade marks—Directive 2008/95—Grounds for refusal or invalidity—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Word mark La Milla de Oro—Sign referring to the characteristic of a product or service which is that it can be found in abundance in a single place with a high degree of value and quality—Distinctive character—Assessment by the national court

Approximation of laws—Trade marks—Directive 2008/95—Grounds for refusal or invalidity—Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods—Aim—Need to preserve availability

Approximation of laws—Trade marks—Directive 2008/95—Grounds for refusal or invalidity—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Indications of geographical origin—Concept—Word mark La Milla de Oro—Sign referring to the characteristic of a product or service which is that it can be found in abundance in a single place with a high degree of value and quality—Not included

A sign such as ‘la Milla de Oro’, referring to the characteristic of a product or service which is that it can be found in abundance in a single place with a high degree of value and quality, cannot constitute an indication of geographical origin, since that sign must be accompanied by a name designating a geographical place so that the actual physical space with which a strong concentration of a product or service of a high degree of value or quality is associated may be identified. In that regard, it should be recalled that the Court has held that Article 3(1)(c) of Directive 2008/95 prohibits the registration of geographical names as trade marks when the names designate places which are, in the mind of the relevant class of persons, currently associated with the category of goods concerned, or when it is reasonable to assume that such an association may be established in the future (see, to that effect, judgment of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraphs 31 and 37). (see paras 16, 21, operative part1)

See the text of the decision. (see para. 23)

See the text of the decision. (see paras 28, 29)
Case C‑441/16

SMS group GmbH

v

Direcţia Generală Regională a Finanţelor Publice Bucureşti

(Request for a preliminary ruling

from the Înalta Curte de Casaţie şi Justiţie)

(Reference for a preliminary ruling — Value added tax (VAT) — Eighth Directive 79/1072/EEC — Directive 2006/112/EC — Taxable person residing in another Member State — Refund of VAT charged on imported goods — Conditions — Objective elements confirming the intention of the taxable person to use the imported goods in the course of his economic activities — Serious risk of non-completion of the transaction that justified the importation)

Summary — Judgment of the Court (Tenth Chamber), 21 September 2017

Harmonisation of fiscal legislation — Common system of value added tax — Refund of the tax to taxable persons not established in the territory of the country — Suspension of the performance of a contract for the importation of goods — Transaction for which those goods were intended not taking place — No proof of the subsequent movements of those goods — Refusal to refund — Not permissible

(Council Directives 79/1072 and 2006/112, Art 170)

Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, read in conjunction with Article 170 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must be interpreted as precluding a refusal by a Member State to refund the value added tax paid on the importation of goods to a taxable person who is not established on its territory in circumstances such as those in the main proceedings where, at the time of importation, the performance of the contract in connection with which the taxable person purchased and imported those goods was suspended, the transaction for which they were intended to be used was in the end not carried out, and the taxable person did not provide proof of their subsequent movements.

It is settled case-law of the Court that, in the absence of fraud or abuse, and subject to any adjustments which may be made in accordance with the conditions laid down by the VAT Directive, the right of refund, once it has arisen, is retained (see, by analogy, judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 46 and the case-law cited).

More specifically, where the taxable person has been unable to use the goods or services which gave rise to a refund in the context of the planned transaction by reason of circumstances beyond his control, the right of refund is retained since, in such a case, there is no risk of fraud or abuse capable of justifying a refusal to refund (see, by analogy, judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 47 and the case-law cited).

(see paras 55, 56, 58, operative part)
Articles 10 and 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital must be interpreted as precluding the taxation of a transfer of shares such as that at issue in the main proceedings, whereby the legal title to all the shares of a company has been transferred to a clearance service for the sole purpose of listing those shares on a stock exchange, without there being any change in the beneficial ownership of those shares.

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 precluding the taxation of a transfer of shares such as that at issue in the main proceedings, whereby the legal title to shares that have been newly issued on an increase in capital has been transferred to a clearance service for the sole purpose of offering those new shares for purchase.

The answer to the first and second questions does not differ where legislation of a Member State, such as that at issue in the main proceedings, enables an operator of a clearance service, when it receives approval from the taxation authority, to elect that no stamp duty is payable on the initial transfer of shares into the clearance service but that a stamp duty reserve tax is instead charged on each subsequent sale of shares.

(see paras 42, 49, operative part 1-3)
Case C‑112/16

Persidera SpA

v

Autorità per le Garanzie nelle Comunicazioni

and

Ministero dello Sviluppo Economico delle Infrastrutture e dei Trasporti

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

(Reference for a preliminary ruling — Electronic communications — Telecommunication services — Directives 2002/20/EC, 2002/21/EC and 2002/77/EC — Equal treatment — Determination of the number of digital radio frequencies to be granted to each operator which already has analogue radio frequencies — Taking into consideration analogue radio frequencies used unlawfully — Correspondence between the number of analogue radio frequencies held and the number of digital radio frequencies obtained)

Summary — Judgment of the Court (Fourth Chamber), 26 July 2017

Questions referred for a preliminary ruling—Jurisdiction of the Court—Limits—Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer—Questions bearing no relation to the subject matter of the case in the main proceedings (Art. 267 TFEU)

Questions referred for a preliminary ruling—Admissibility—Need to provide the Court with sufficient information on the factual and legislative context—Extent of the obligation in the sphere of competition (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

Approximation of laws—Telecommunications sector—Electronic communications networks and services—Authorisation and regulatory framework—Directives 2002/20, 2002/21 and 2002/77—Management of radio frequencies—Conversion of the analogue channels into digital networks—Determination of the number of digital radio frequencies to be granted to each operator which already has analogue radio frequencies—Taking into consideration analogue radio frequencies used unlawfully—Not permissible (European Parliament and Council Directives 2002/20, Arts 3, 5 and 7, and 2002/21, Art. 9, as amended by Directive 2009/140; Commission Directive 2002/77, Arts 2 and 4)
Judgment of the Court (Sixth Chamber) of 26 October 2017 —

Global Steel Wire and Others v Commission

(Joined Cases C‑454/16 P to C‑456/16 P and C‑458/16 P) ( 1 )

(Appeal — Regulation (EC) No 1/2003 — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Infringement of Article 101 TFEU — Fines — 2006 Guidelines on the method of setting fines — Paragraph 35 — Ability to pay — New request for a reduction in the amount of the fine on the ground of inability to pay — Letter of rejection — Action brought against that letter — Admissibility)

Actions for annulment—Actionable measures—Concept—Measures producing binding legal effects—Decision of the Director General for Competition of the Commission ruling on an application for reassessment of the ability to pay of undertakings fined for breach of the competition rules—Application brought after the Commission’s decision—No new and substantial facts—Inadmissibility

(Art. 263, para. 4, TFEU; Commission Communication 2006/C 210/02, point 35)

(see paras 30, 31, 34, 53)

Operative part

The Court:

1. Dismisses the appeals;

2. Orders Global Steel Wire SA, Moreda-Riviere Trefilerías SA, Trefilerías Quijano SA and Trenzas y Cables de Acero PSC SL to pay the costs.

( 1 ) OJ C 392, 24.10.2016.
Appeal—Grounds—Incorrect assessment of the facts and evidence—Inadmissibility—Review by the Court of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted

(Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 25-28, 40, 48, 56, 62, 105-108)
Article 1(7)(c) of Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in accordance with Articles [107 and 108 TFEU] (General block exemption Regulation) must be interpreted as meaning that the concept of ‘collective insolvency proceedings’ that it refers to covers all collective insolvency proceedings for undertakings provided for by national law, whether they are opened by the national administrative or judicial authorities of their own motion or on the initiative of the undertaking concerned.

Article 1(7)(c) of Regulation No 800/2008 must be interpreted as meaning that the fact that an undertaking satisfied the conditions for being subject to collective insolvency proceedings according to national law, which is for the referring court to establish, is sufficient to prevent State aid being granted to it under that regulation or, if such aid has already been granted to it, to hold that it could not be granted in accordance with that regulation provided that those conditions were satisfied on the date on which that aid was granted. However, aid granted to an undertaking in compliance with Regulation No 800/2008 and, in particular, Article 1(6) thereof, cannot be withdrawn solely on the ground that that undertaking has been subject to collective insolvency proceedings subsequent to the date on which that aid was granted to it.

(see para. 39, operative part 2)
Case C‑507/16

Entertainment Bulgaria System EOOD

v

Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Sofia

(Request for a preliminary ruling from the Administrativen sad Sofia-grad)

(Reference for a preliminary ruling — Taxation — Directive 2006/112/EC — Article 168(a), Article 169(a), Article 214(1)(d) and (e), and Articles 289 and 290 — Deductibility of input value added tax (VAT) due or paid — Output transactions carried out in other Member States — Tax exemption scheme in the Member State in which the right to deduct is exercised)

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

Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Reverse charge procedure — Obligation to register affecting the recipient and/or the provider of services relating to the reverse charge procedure — National legislation denying the registered recipient of a right to deduct such tax — Fulfilment of the substantive requirements of the right to deduction and identification of the taxable person for value added tax purposes — Unlawful — National legislation that also fails to grant a right to deduct to a taxable person who enjoys a tax exemption scheme in his Member State of establishment — Lawfulness

(Council Directive 2006/112, as amended by Directive 2009/162, Arts 168(a), 169(a) and 214(1)(d) and (e))

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009, must be interpreted as precluding Member State legislation that prevents a taxable person, established in the territory of that Member State, deducting input value added tax due or paid in that Member State in respect of services provided by taxable persons established in other Member States and used to provide services in Member States other than the Member State in which that taxable person is established, on the ground that that taxable person is identified for value added tax purposes by virtue of one of the two cases referred to in Article 214(1)(d) and (e) of Directive 2006/112, as amended by Directive 2009/162. However, Article 168(a) and Article 169(a) of Directive 2006/112, as amended by Directive 2009/162, must be interpreted as precluding legislation of a Member State that prevents a taxable person, established in the territory of that Member State and eligible there for a tax exemption scheme, exercising its right to deduct input value added tax due or paid in that Member State for services provided by taxable persons established in other Member States and used to provide services in Member States other than the Member State in which that taxable person is established.

(see para. 45, operative part)
Article 4(2) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States must be interpreted as precluding a provision of domestic law, such as Article 198(10) of the 1992 Income Tax Code, coordinated by the Royal Decree of 10 April 1992 and confirmed by the Law of 12 June 1992, pursuant to which interest paid by a parent company under a loan is not deductible from the taxable profits of that parent company up to an amount equal to that of the dividends, which already benefit from tax deductibility, that are received from the holdings of that parent company in the capital of its subsidiary companies that have been held for a period of less than one year, even if such interest does not relate to the financing of such holdings.

The option granted to Member States by that provision seeks to prevent a parent company from benefiting from a double tax advantage arising, first, from profits that are tax-exempt pursuant to the first indent of Article 4(1) of Directive 90/435 and, second, from the tax reduction by means of the deduction by virtue of charges relating to holding losses resulting from the distribution of such profits (see, to that effect, judgment of 22 December 2008, Les Vergers du Vieux Tauves, C‑48/07, EU:C:2008:758, paragraph 42). From that point of view, Article 4(2) of Directive 90/435 must necessarily be interpreted as allowing Member States only to prevent a parent company from benefiting from the double tax advantage referred to in the preceding paragraph. Permitting Member States to refuse to allow parent companies to deduct interest that is not linked to the acquisition of holdings on which tax-free dividends have been paid out would manifestly go beyond what is necessary to achieve such an objective.

(see paras 54, 55, 57, operative part 1)
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, in particular Article 5(2)(b) thereof, must be interpreted as precluding national legislation which permits a commercial undertaking to provide private individuals with a cloud service for the remote recording of private copies of works protected by copyright, by means of a computer system, by actively involving itself in the recording, without the rightholder’s consent.

It follows from Article 3 of Directive 2001/29 that any communication to the public, including the making available of a protected work or subject matter, requires the rightholder’s consent, given that, as is apparent from recital 23 of that directive, the right of communication of works to the public should be understood in a broad sense covering any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. In the present case, the service provider at issue in the main proceedings records programmes broadcast and makes them available to its customers via the Internet. In the first place, it is evident that the sum of the persons targeted by that provider constitutes a ‘public’ within the meaning of the case-law cited in paragraph 45 of the present judgment. In the second place, the original transmission made by the broadcasting organisation, on the one hand, and that made by the service provider at issue in the main proceedings, on the other, are made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for its public (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 39). The transmissions referred to thus constitute communications to different publics, and each of them must therefore receive the consent of the rightholders concerned.

(see paras 40, 46-49, 54, operative part)
Since the Bulgarian language version of Article 86(2) of the Rules of Procedure of the General Court is ambiguous, in the sense that, contrary to the English language version (‘separate document’) and the French version (‘acte séparé’) of that provision, the Bulgarian language version thereof does not use the word ‘document’, but the term ‘molba’ (‘request’), it is not inconceivable that that ambiguity could induce an applicant to consider that it would be admissible to request the modification of the application orally at the hearing. Additionally, the said request was, subsequently, recorded in the minutes of the oral hearing, which is an official record, pursuant to Article 102(1) of the Rules of Procedure of the General Court.

If the General Court considered that the request to modify the application submitted in that way did not comply with the form required by its Rules of Procedure, it was under an obligation, at the very least, to inform the appellant of his error and to place him in a position of being able to rectify it.

While it is perfectly in order for modification of the application to be subject to certain formal requirements, such formal requirements do not apply for their own sake but are, on the contrary, intended to ensure the adversarial nature of proceedings and the sound administration of justice.

In that regard, Article 86(3) and (4) of the Rules of Procedure of the General Court themselves provide that the failure to satisfy certain formalities in the presentation of requests for modifications does not necessarily render them inadmissible.

(see paras 20-24)
Article 1(1) and Article 1(2)(a) of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Directive 2007/47/EC of the European Parliament and of the Council of 5 September 2007, must be interpreted as meaning that software, of which at least one of the functions makes it possible to use patient-specific data for the purposes, inter alia, of detecting contraindications, drug interactions and excessive doses, is, in respect of that function, a medical device within the meaning of those provisions, even if that software does not act directly in or on the human body.

Consequently, and to the extent that such software constitutes a medical device, it must, pursuant to Article 17(1) of that directive, compulsorily bear the CE marking of conformity when it is placed on the market. Once the marking has been obtained, the product, having regard to that function, may be placed on the market and circulate freely in the European Union without having to undergo any additional procedure, such as a new certification (see, to that effect, judgment of 19 November 2009, Nordiska Dental, C‑288/08, EU:C:2009:718, paragraph 21).

In respect of medical software comprising both modules that meet the definition of the term ‘medical device’ and others that do not meet it and that are not accessories within the meaning of Article 1(2)(b) of Directive 93/42, only the former fall within the scope of the directive and must be marked CE.

As a result, the manufacturer of such software is required to identify which of the modules constitute medical devices, so that the CE marking can be affixed to those modules only.

(see paras 35, 36, 38, 39, operative part)
Articles 167, 168, 184, 185 and 187 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted to the effect that they preclude national legislation which provides for the adjustment of the value added tax initially deducted on the ground that a property, for which the right to opt for taxation was exercised, is regarded as no longer being used by the taxable person for the purposes of its own taxed transactions, where that property has remained unoccupied for more than two years, even though it is established that the taxable person has sought to rent it during that period.

It is important to recall also that it is the acquisition of goods or services by a taxable person acting as such that gives rise to the application of the VAT system and therefore of the deduction mechanism. The use to which the goods or services are put, or intended to be put, merely determines the extent of the initial deduction to which the taxable person is entitled under Article 168 of the VAT Directive and the extent of any adjustments in the course of the following periods (see, to that effect, judgment of 11 July 1991, Lennartz, C‑97/90, EU:C:1991:315, paragraph 15).

It follows therefore that the entitlement to a reduction is retained in principle, even if subsequently, by reason of circumstances beyond its control, the taxable person does not make use of those goods and services which gave rise to a deduction in the context of taxed transactions (see, to that effect, judgments of 29 February 1996, INZO, C‑110/94, EU:C:1996:67, paragraph 20, and of 15 January 1998, Ghent Coal Terminal, C‑37/95, EU:C:1998:1, paragraphs 19 and 20).

Any other interpretation of the VAT Directive would be contrary to the principle that VAT should be neutral as regards the tax burden on a business.

(see paragraphs 39, 40, 43, 53, operative part)
Appeal—Grounds—Incorrect assessment of the facts and evidence—Inadmissibility—Review by the Court of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 38-42, 56-61, 64-68)