ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 63/8

Judgment of the Court (Third Chamber) of 21 January 2010 (reference for a preliminary ruling from the Tribunal de première instance de Mons — Belgium) — Société de Gestion Industrielle (SGI) v État belge

(Case C-311/08) (1)

(Freedom of establishment - Free movement of capital - Direct taxation - Income tax legislation - Determination of the taxable income of companies - Companies having a relationship of interdependence - Unusual or gratuitous advantage granted by a resident company to a company established in another Member State - Addition of the amount of the advantage in question to the profits of the resident company which granted it - Balanced allocation of the power to tax between Member States - Combating tax avoidance - Prevention of abuse - Proportionality)

2010/C 63/11

Language of the case: French

Referring court

Tribunal de première instance de Mons

Parties to the main proceedings

Applicant: Société de Gestion Industrielle (SGI)

Défendant: État belge

Re:

Reference for a preliminary ruling — Tribunal de première instance de Mons (Belgium) — Interpretation of Articles 12, 43, 48 and 56 EC — Permissibility of a national law providing for the taxation of a resident company on an unusual or gratuitous advantage granted to a non-resident company with which it has a relationship of interdependence but which does not provide for such taxation where the same advantage is granted to a resident company

Operative part of the judgment

Article 43 EC, read in conjunction with Article 48 EC, must be interpreted as not precluding, in principle, legislation of a Member State, such as that at issue in the main proceedings, under which a resident company is taxed in respect of an unusual or gratuitous advantage where the advantage has been granted to a company established in another Member State with which it has, directly or indirectly, a relationship of interdependence, whereas a resident company cannot be taxed on such an advantage where the advantage has been granted to another resident company with which it has such a relationship. However, it is for the referring court to verify whether the legislation at issue in the main proceedings goes beyond what is necessary to attain the objectives pursued by the legislation, taken together.

(1) OJ C 260, 11.10.2008.
EN Official Journal of the European Union C 100/4

Judgment of the Court (Fourth Chamber) of 25 February 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Car Trim GmbH v KeySafety Systems Srl

(Case C-381/08) (1)

(Jurisdiction in civil and commercial matters - Regulation (EC) No 44/2001 - Article 5(1)(b) - Jurisdiction in matters relating to a contract - Determination of the place of performance of the obligation - Criteria for distinguishing between ‘sale of goods’ and ‘provision of services’)

2010/C 100/05

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Car Trim GmbH

Defendant: KeySafety Systems Srl

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Contract for the supply of goods to be manufactured also including instructions from the customer with regard to the provision, fabrication and delivery of the components to be produced, including a guarantee of the quality of production, reliability of delivery and smooth administrative handling of the contract — Criteria for a distinction between sale of goods and supply of services — Determination of the place of performance of the obligation in the case of a sale involving the carriage of goods.

Operative part of the judgment

1. Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that where the purpose of contracts is the supply of goods to be manufactured or produced and, even though the purchaser has specified certain requirements with regard to the provision, fabrication and delivery of the components to be produced, the purchaser has not supplied the materials and the supplier is responsible for the quality of the goods and their compliance with the contract, those contracts must be classified as a ‘sale of goods’ within the meaning of the first indent of Article 5(1)(b) of that regulation.

2. The first indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that, in the case of a sale involving carriage of goods, the place where, under the contract, the goods sold were delivered or should have been delivered must be determined on the basis of the provisions of that contract. Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction.

(1) OJ C 301, 22.11.2008.
1.

Where amendments to the provisions of a service concession contract are materially different in character from those on the basis of which the original concession contract was awarded, and are therefore such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, all necessary measures must be taken, in accordance with the national legal system of the Member State concerned, to restore the transparency of the procedure, which may extend to a new award procedure. If need be, a new award procedure should be organised in a manner appropriate to the specific features of the service concession involved, and should ensure that an undertaking located in another Member State has access to sufficient information on that concession before it is awarded.
EN Official Journal of the European Union C 179/5

Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

(Case C-365/08) (1)

(Sugar - Regulation (EC) No 318/2006 - Article 16 - Calculation of the production charge - Inclusion of the quantity of quota sugar withdrawn from the market in the basis for assessment of the charge - Principles of proportionality and non-discrimination)

2010/C 179/07

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Agrana Zucker GmbH

Defendant: Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof (Austria) — Interpretation of Article 34 of the EC Treaty, especially the principles of non-discrimination, the protection of legitimate expectations and proportionality — Interpretation and validity of Article 16 of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1) — Inclusion, for the purposes of calculating the production charge, of the quota subject to preventive withdrawal in accordance with Article 1 of Commission Regulation (EC) No 290/2007 of 16 March 2007 establishing, for the 2007/2008 marketing year, the percentage provided for in Article 19 of Regulation (EC) No 318/2006 (OJ 2007 L 78, p. 20)

Operative part of the judgment

1. Article 16 of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector must be interpreted as meaning that the quantity of quota sugar withdrawn from the market pursuant to Article 19 of that regulation and Article 1 of Commission Regulation (EC) No 290/2007 of 16 March 2007 establishing, for the 2007/2008 marketing year, the percentage provided for in Article 19 of Regulation (EC) No 318/2006 is included in the basis for assessment of the production charge.

2. Examination of the second question has not revealed anything which might affect the validity of Article 16 of Regulation No 318/2006.

(1) OJ C 285, 8.11.2008.
EN Official Journal of the European Union C 221/2

Judgment of the Court (First Chamber) of 17 June 2010 — European Commission v Portuguese Republic

(Case C-105/08) (1)

(Failure of a Member State to fulfil obligations - Freedom to provide services and free movement of capital - Articles 49 EC and 56 EC and Articles 36 and 40 of the EEA Agreement - Direct taxation - Taxation of interest received - Discriminatory treatment of non-residents - Burden of proof)

2010/C 221/02

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic (represented by: L. Inez Fernandes, J. Menezes Leitão and C. Guerra Santos, Agents)

Intervener in support of the defendant: Republic of Lithuania (represented by: D. Kriaučiūnas and V. Kazlauskaitė-Švenčionienė, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 49 EC and 56 EC — Difference in treatment of taxation of interest paid to financial institutions depending on whether they are resident or not in Portuguese territory

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the European Commission to pay the costs;

3. Orders the Republic of Lithuania to bear its own costs.

(1) OJ C 116, 9.5.2008.
EN Official Journal of the European Union C 209/6

Judgment of the Court (First Chamber) of 3 June 2010 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc)

(Case C-484/08) (1)

(Directive 93/13/EEC - Consumer contracts - Terms defining the main subject-matter of the contract - Assessment by the courts as to their unfairness - Excluded - More stringent national provisions designed to afford a higher level of consumer protection)

2010/C 209/07

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Caja de Ahorros y Monte de Piedad de Madrid

Defendant: Asociación de Usuarios de Servicios Bancarios (Ausbanc)

Re:

Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Articles 2, 3(1)(g) and 4(1) EC and of Articles 4(2) and 8 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1995 L 95, p. 29) — Stricter national provisions to guarantee the consumer a higher level of protection — Review of terms defining the main subject matter of the contract or the adequacy of the price and remuneration as against the services or goods supplied.

Operative part of the judgment

1. Articles 4(2) and 8 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which authorises a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language;

2. Articles 2 EC, 3(1)(g) EC and 4(1) EC do not preclude an interpretation of Articles 4(2) and 8 of Directive 93/13 according to which Member States may adopt national legislation which authorises a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language.

(1) OJ C 19, 24.01.2009.
EN Official Journal of the European Union C 234/6

Judgment of the Court (Second Chamber) of 1 July 2010 — Knauf Gips KG, formerly Gebrüder Knauf Westdeutsche Gipswerke KG v European Commission

(Case C-407/08 P) (1)

(Appeal - Agreements, decisions and concerted practices - Plasterboard - Access to the file - Inculpatory and exculpatory evidence - Concept of ‘undertaking’ - Economic unit - Company responsible for the economic unit’s actions - Argument raised for the first time during the judicial proceedings)

2010/C 234/09

Language of the case: German

Parties

Appellant: Knauf Gips KG, formerly Gebrüder Knauf Westdeutsche Gipswerke KG (represented by: M. Klusmann and S. Thomas, Rechtsanwälte)

Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre and R. Sauer, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 8 July 2008 in Case T-52/03 Knauf Gips v Commission dismissing the action for annulment of Commission Decision 2005/471/EC of 27 November 2002 relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case COMP/E-1/37.152 — Plasterboard (OJ 2005 L 166, p. 8), or, in the alternative, for reduction of the fine imposed on the appellant — Cartel on the plasterboard market — Failure to take into account a breach of the rights of the defence during the administrative procedure — Infringement of the ‘in dubio pro reo’ principle — Taking into account, for the purpose of calculating the amount of the fine, the turnover of undertakings that do not form part of the same economic unit as the appellant

Operative part of the judgment

The Court:

1. Sets aside the judgment of 8 July 2008 of the Court of First Instance of the European Communities in Case T-52/03 Knauf Gips v Commission in so far as it imputes to Knauf Gips KG liability for the infringements committed by the companies constituting the Knauf Group;

2. Dismisses the rest of the appeal;

3. Dismisses the action brought by Knauf Gips KG for annulment of Commission Decision 2005/471/EC of 27 November 2007 relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 — Plasterboard);

4. Orders each party to bear its own costs relating to the appeal and Knauf Gips KG to pay all the costs at first instance.

(1) OJ C 313, 6.12.2008.
2.

In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with them. The following matters, the list of which is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader’s activity is directed to the Member State of the consumer’s domicile, namely the international nature of the activity, mention of itineraries from other Member States for going to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States. It is for the national courts to ascertain whether such evidence exists. On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.
2.

Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that the ‘fair balance’ between the persons concerned means that fair compensation must be calculated on the basis of the criterion of the harm caused to authors of protected works by the introduction of the private copying exception. It is consistent with the requirements of that ‘fair balance’ to provide that persons who have digital reproduction equipment, devices and media and who on that basis, in law or in fact, make that equipment available to private users or provide them with copying services are the persons liable to finance the fair compensation, inasmuch as they are able to pass on to private users the actual burden of financing it.
1.

Article 49 EC must be interpreted as follows: (a) A Member State that is seeking to ensure a particularly high level of consumer protection in the gambling sector may be justified in taking the view that it is only by granting exclusive rights to a single body, subject to strict control by the public authorities, that it can tackle the risks connected with that sector and pursue the objective of preventing incitement to squander money on gambling and of combating addiction to gambling with sufficient effectiveness; (b) It is for the national court to determine whether: — the national authorities genuinely sought, at the material time, to ensure such a particularly high level of protection and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary, and — the State controls to which the activities of the body benefiting from the exclusive rights are, in principle, subject are actually implemented in the consistent and systematic pursuit of the objectives assigned to that body; (c) In order to be consistent with the objectives of combating criminality and reducing gambling opportunities, national legislation establishing a gambling monopoly must: — be based on a finding that criminal and fraudulent activities linked to gaming and gambling addiction are a problem in the territory of the Member State concerned, which the expansion of authorised and regulated activities would be capable of solving, and — allow only advertising that is measured and strictly limited to what is necessary in order to channel consumers towards controlled gaming networks.
EN Official Journal of the European Union C 152/3

Judgment of the Court (Grand Chamber) of 29 March 2011 — European Commission v Italian Republic

(Case C-565/08) (1)

(Failure of a Member State to fulfil obligations - Articles 43 EC and 49 EC - Lawyers - Obligation to comply with maximum fee tariffs - Obstacle to market access - No obstacle)

2011/C 152/03

Language of the case: Italian

Parties

Applicant: European Commission (represented by: E. Traversa and L. Prete, Agents)

Defendant: Italian Republic (represented: I. Bruni, G. Calmieri and W. Ferrante, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 43 EC and 49 EC — Lawyers — Obligation to comply with compulsory fee ceilings

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the European Commission and the Italian Republic to bear their own costs.

(1) OJ C 55, 7.3.2009.
EN Official Journal of the European Union C 282/16

Judgment of the Court (Seventh Chamber) of 22 September 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-9/09) (1)

(Failure of a Member State to fulfil obligations - Public Health - Directive 2004/23/EC - Setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells - Failure to transpose within the prescribed period)

2009/C 282/30

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. Cattabriga and J. Sénéchal, Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt or to communicate, within the prescribed period, the measures necessary to comply with Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells (OJ 2004 L 102, p. 48)

Operative part of the judgment

The Court:

1. Declares that, by not adopting, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, the Kingdom of Belgium has failed to fulfil its obligations under that directive.

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 69, 21.3.2009.
EN Official Journal of the European Union C 100/10

Judgment of the Court (Seventh Chamber) of 25 February 2010 — European Commission v Republic of Austria

(Case C-330/09) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/43/EC - Company law - Statutory audits of annual accounts and consolidated accounts - Failure to transpose within the prescribed period)

2010/C 100/14

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Braun and M. Adam, acting as Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt or notify, within the prescribed period, the provisions necessary to comply with Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (OJ L 157, p. 87)

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC, the Republic of Austria has failed to fulfil its obligations under that directive;

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

(1) OJ C 233, 26.9.2009.