ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 72/16

Action brought on 21 December 2010 — European Commission v French Republic

(Case C-624/10)

2011/C 72/28

Language of the case: French

Parties

Applicant: European Commission (represented by: M. Afonso, acting as Agent)

Defendant: French Republic

Form of order sought

— declare that, by providing in Title IV of Administrative Instruction No 105 of 23 June 2006 (3 A-9-06) for an administrative concession derogating from a VAT reverse charge scheme and necessitating, among other things, the designation of a tax representative by a seller or provider established outside of France, the French Republic has failed to fulfil its obligations under the VAT Directive and, in particular, Articles 168, 171, 193, 194, 204 and 214 thereof;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission claims that the French legislation derogating from a VAT reverse charge scheme is, in a number of respects, contrary to the law of the European Union.

Firstly, the taxable persons who wish to benefit from the scheme introduced by Title IV of Administrative Instruction 3 A-9-06 are obliged to designate a tax representative, which is not in accordance with Article 204 of the VAT Directive. That article allows Member States to impose such an obligation only in the case where no instrument exists, with the country in which the taxable person is established, organising mutual assistance in indirect taxation matters similar to that provided for within the European Union.

Secondly, the administrative concession is also subject to the obligation for the seller to identify him or herself for VAT purposes in France, which is not in accordance with Article 214(1) of the VAT Directive. Under that provision the duty to identify oneself for VAT purposes does not apply to those taxable persons who carry out, in the territory of a Member State in which they are not established, supplies of goods or services subject to reverse charge by the customer, in particular in application of Article 194 of the VAT Directive.

Thirdly and finally, the scheme provides for the offsetting of the deductible VAT of the seller or provider against the VAT collected by one or more of his or her customers. That is not in accordance with the provisions of Articles 168 and 171 of the VAT Directive, which provide that the set-off between deductible VAT and collected VAT is to apply on an individual level to each taxable person. Such a derogating scheme also cannot be based upon Article 11 of that directive.
If the assertion of a temporary beneficial effect may in itself be a reference to health:

In order for it to be assumed that such an effect is due to the absence or reduced content of a substance within the meaning of Article 5(1)(a) and recital 15 in the preamble to the Regulation, is it sufficient merely to assert in the claim that an effect generally derived from foods of this kind and frequently perceived as being adverse is limited in a particular case?
EN Official Journal of the European Union C 103/13

Action brought on 29 December 2010 — European Commission v Republic of Slovenia

(Case C-627/10)

2011/C 103/23

Language of the case: Slovene

Parties

Applicant: European Commission (represented by: H. Stølvlbæk and D. Kukovec, Agents)

Defendant: Republic of Slovenia

Form of order sought

The applicant claims that the Court should:

— declare that, with regard to implementation of the first railway package, the Republic of Slovenia has failed to fulfil its obligations under Article 6(3) of and Annex II to Council Directive 91/440/EEC, (1) as amended, Article 14(2) of Directive 2001/14/EC, (2) and Articles 6(2) to (5), 7(3), 8(1), 11 and 30(1) of Directive 2001/14/EC;

— order the Republic of Slovenia to pay the costs.

Pleas in law and main arguments

The Commission maintains that, because it is the infrastructure manager, which alone supplies railway transport services, that organises the running of the trains and is, therefore, included in the adoption of decisions concerning the allocation of train paths or in the allocation of infrastructure capacity, the Republic of Slovenia has failed to satisfy the requirements of Article 6(3) of, and Annex II to, Directive 91/440/EEC, as amended, or those of Article 14(2) of Directive 2001/14/EC.

By failing to ensure a mechanism of incentives to reduce the costs of providing infrastructure and the level of charges for access, the Republic of Slovenia has failed to fulfil its obligations under Article 6(2) to (5) of Directive 2001/14/EC.

The Commission considers, therefore, that by failing to provide a method of calculation that ensures that the charges imposed for the minimum access package and track access to service facilities are equal to the costs directly incurred as a result of operating the service, the Republic of Slovenia has failed to fulfil its obligations under Article 7(3) of Directive 2001/14/EC.

By failing to adopt a performance scheme encouraging railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network, the Republic of Slovenia has failed to fulfil its obligations under Article 11 of Directive 2001/14/EC.

By failing to make provision, in its domestic legislation, for ascertaining whether a particular sector of the market can bear ‘mark-ups’ in order to obtain full recovery of the manager’s costs, the Republic of Slovenia has failed to fulfil its obligations under Article 8(1) of Directive 2001/14/EC.

By failing to establish a regulatory body, independent in its decision-making of any manager of the railway infrastructure or any applicant, the Republic of Slovenia has failed to fulfil its obligations under Article 30(1) of Directive 2001/14/EC.

(1) OJ 1991 L 237, p. 25.

(2) OJ 2001 L 75, p. 29.
2.

Must Articles 21 and 20(2) of the Treaty on the Functioning of the European Union and Article 10 of Council Regulation (EEC) No 1408/71 be interpreted as precluding the application of national provision Article 114(1) of the Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych (Polish Law on retirement pensions and other pensions from the Social Security Fund) of 17 December 1998 (Dziennik Ustaw of 2009, No 153, item 1227, as amended), in conjunction with Article 4 of the Agreement of 9 October 1975 between the People’s Republic of Poland and the Federal Republic of Germany on pension and accident insurance (Dziennik Ustaw No 16, item 101, of 1976, as amended), which entails re-examination of the case by the Polish pension institution and removal of the pension right of a person who, for many years, has had simultaneously two habitual residences (two centres of interest) in two countries now belonging to the European Union and who did not, prior to 2009, submit an application or declaration concerning the transfer of residence to one of those countries? In the event that the answer is in the negative:
4.

In order for a combination of active ingredients cited in an authorisation for placing a medicinal product on the market to be the subject of an SPC, and having regard to the wording to Article 4 of the Regulation, does satisfaction of the condition that the product be ‘protected by a basic patent’ within the meaning of Articles 1 and 3 of the Regulation depend upon whether the basic patent contains one (or more) claims which specifically mention a combination of (1) a class of compounds which includes one of the active ingredients in the said product and (2) a class of further active ingredients which may be unspecified but which includes the other active ingredient in the said product; or is it sufficient that the basic patent contains one (or more) claims which (1) claim a class of compounds which includes one of the active ingredients in the said product and (2) use specific language which as a matter of national law extends the scope of protection to include the presence of further other unspecified active ingredients including the other active ingredient in the said product?
EN Official Journal of the European Union C 103/16

Action brought on 1 February 2011 — European Commission v Republic of Poland

(Case C-46/11)

2011/C 103/29

Language of the case: Polish

Parties

Applicant: European Commission (represented by: S. Petrova and K. Herrmann, Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by carrying out an improper transposition of the conditions for establishing derogations within the terms of Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, (1) the Republic of Poland has failed to fulfil its obligations under that provision;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission alleges that the Republic of Poland has failed correctly to transpose into Polish law the conditions governing derogations from the prohibitions connected with the protection of bird and animal species as set out in Article 16(1) of Council Directive 92/43/EEC.

First, in two regulations of the Minister for the Environment in relation to protected species of plants and animals occurring in the wild, paragraphs 7(1) and 8 respectively allow for a general derogation from the prohibitions serving the protection of species (as, for example, the prohibition of intentional killing, capture, and so forth) in connection with activities linked to the operation of rational agricultural or forestry holdings or of fisheries. Article 16(1) of Directive 92/43/EEC, however, does not provide for any possibility of such a derogation.

Second, in Article 52(2)(5) of the Law on the protection of nature, the possibility of providing for a derogation, for purposes of the ‘prevention of serious damage, in particular in agricultural or forestry holdings or in fisheries’, from the obligations connected to the protection of animal species is more extensive in scope than the derogation provided for in Article 16(1)(b) of Directive 92/43/EEC.

Third, the possibility, provided for under Article 56(4)(2) of the Law on the protection of nature, of a derogation from the prohibitions concerning species protection in the case where this ‘results from the need to restrict serious damage on a holding, in particular an agricultural farm, forestry holding or a fish farm’ is more extensive than that provided for in Article 16(1)(b) of the habitats directive.

Fourth, the regulation of 28 September 2004 concerning protected species of animals living in the wild permits the killing, capture and so forth of otters (Lutra Lutra) living in the environs of fish ponds designated as breeding areas, notwithstanding the fact that the otter is a species in need of strict protection under the terms of Annex IV to Directive 92/43/EEC.

(1) OJ 1992 L 206, p. 7.
1.

Where a Member State (such as the UK) includes in its tax base the profits and losses of a company incorporated and tax resident in another Member State (such as the Netherlands) to the extent that the profits are attributable to a business carried on by the Netherlands company in the UK through a permanent establishment situated in the UK, is it a restriction on the freedom of a national of a Member State to establish in the UK under Article 49 TFEU (ex Article 43 EC) for the UK to prevent the surrender of the UK losses of a permanent establishment situated in the UK of a non-UK resident company to a UK company by way of group relief where any part of those losses or any amount brought into account in computing them ‘corresponds to, or is represented in, any amount which, for the purposes of any foreign tax is (in any period) deductible from or otherwise allowable against non-UK profits of the company or any person’ Le. to permit the surrender of UK losses in the case of a permanent establishment situated in the UK only where it is clear that at the time of the claim there can never be any deduction or allowance in any State outside the UK (including another Member State (such as the Netherlands)), and it being insufficient that relief available overseas has not in fact been claimed, and in circumstances where there is no equivalent condition applicable to the surrender of UK losses of a UK resident company?
EN Official Journal of the European Union C 113/8

Action brought on 11 February 2011 — European Commission v Kingdom of Spain

(Case C-64/11)

2011/C 113/17

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: R. Lyal and J. Baquero Cruz, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— declare that, by adopting Article 17(1) of Royal Legislative Decree 4/2004 of 5 March approving the consolidated text of the Law on Corporation Tax, the Kingdom of Spain has failed to comply with its obligations under Article 49 of the Treaty on the Functioning of the European Union and Article 31 of the Agreement on the European Economic Area;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The provision at issue introduces special treatment for unrealised capital gains on assets of companies that transfer their residence to another Member State of the European Union, cease their activity in Spain in order to continue it in another Member State or transfer their activities to another Member State. In those cases, Spain taxes the unrealised capital gains at the time of exit, so that the affected companies must settle a tax debt in respect of unrealised and hypothetical revenues which may never be realised. That regime amounts to an exception to the normal rule according to which tax is levied on revenue actually obtained by the taxable person during the taxable period.

The Commission submits that that aspect of the Spanish legislation is incompatible with the TFEU and with the EEA Agreement, since it is a discriminatory measure, and in any event a disproportionate restriction on the freedom of establishment. The Spanish rule could discourage movements of companies or assets which would result in a better distribution of economic resources.

The Commission considers that companies must have the right to transfer their registered office or individual assets to another Member State without being subject to excessively complex and onerous procedures. According to the Commission, there is no justification for the immediate charging of taxes on unrealised capital gains when a Spanish company is transferred to another Member State or when a permanent establishment ceases activity in Spain or transfers its assets from Spain to another Member State, if that kind of taxation is not found in comparable national situations.
2.

If the first question referred for a preliminary ruling is answered in the negative, should Article 8 of Directive 98/34/EC (2) of the European Parliament and of the Council (of 22 June 1998) ‘laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services’, notwithstanding Article 10(1), first indent, of the same Directive, be interpreted as imposing an obligation that the Commission be notified of a draft standard on the basis of which every registered petroleum company which releases petrol products and/or diesel products for consumption is also obliged in the same calendar year to make available for consumption a quantity of sustainable biofuels, namely bio-ethanol, pure or in the form of bio-ETBE, amounting to at least 4 % vol/vol of the quantity of petrol products released for consumption, and FAME amounting to at least 4 % vol/vol of the quantity of diesel products released for consumption?
EN Official Journal of the European Union C 130/10

Action brought on 15 February 2011 — European Commission v Kingdom of the Netherlands

(Case C-65/11)

2011/C 130/19

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: A. Nijenhuis and D. Triantafyllou, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— Declare that, by failing to consult the VAT Committee and by allowing non-taxable persons to join a fiscal unit, as is apparent from the resolution of 18 February 1991, No VB91/347, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

— order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

Article 9(1) of Directive 2006/112/EC provides that ‘taxable person’ means any person who, independently, carries out in any place any economic activity, whatever the results of that activity. Article 11 of the VAT Directive provides that after consulting the advisory committee on value added tax (‘the VAT Committee’) each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.

According to the Commission, the Netherlands has failed to fulfil its obligations under Articles 9 and 11 of Directive 2006/112/EC because it permits non-taxable persons to join a fiscal unit. Furthermore, in failing to consult the VAT Committee, the Netherlands has failed to comply with Article 11.

(1) OL 2006 L 347, p. 1.
EN Official Journal of the European Union C 120/7

Reference for a preliminary ruling from the Tribunale Ordinario di Firenze (Italy), lodged on 22 February 2011 — Criminal proceedings against Maurizio Giovanardi and Others

(Case C-79/11)

2011/C 120/13

Language of the case: Italian

Referring court

Tribunale Ordinario di Firenze

Parties to the main proceedings

Accused: Maurizio Giovanardi, Andrea Lastini, Vito Pignionica, Massimiliano Pempori, Filippo Ricci, Gezim Lakja, Elettrifer Srl, Rete Ferroviaria Italiana SpA)

Other parties: Franca Giunti, Laura Marrai, Francesca Marrai, Stefania Marrai, Giovanni Marrai, Alfio Bardelli, Andrea Tomberli

Question referred

Are the provisions of Italian law on the administrative liability of legal bodies/persons set out in Legislative Decree No 231/2001, as subsequently amended, compatible with the provisions of Community law on the protection, in criminal proceedings, of victims of crime, in particular with Articles 2, 3 and 8 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (1) and with the provisions of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, (2) insofar as those national provisions do not ‘expressly’ provide that those legal bodies/persons may be held liable, in criminal proceedings, for the damage caused to the victims of crime?

(1) OJ 2001 L 82, p. 1.

(2) OJ 2004 L 261, p. 15.
EN Official Journal of the European Union C 145/8

Action brought on 16 February 2011 — European Commission v Italian Republic

(Case C-68/11)

2011/C 145/10

Language of the case: Italian

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and S. Mortoni, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by exceeding for a number of consecutive years the limit values for PM10 particles in ambient air throughout Italian territory, the Italian Republic has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC (1) of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (now Article 13(1) of Directive 2008/50/EC (2) of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

Under Article 5(1) of Directive 1999/30, Member States are to take the measures necessary to ensure that concentrations of PM10 in ambient air do not exceed the limit values laid down in Section I of Annex III to that directive as from the dates specified therein. The relevant date in the present context is 1 January 2005.

The assessment made by the Commission in the annual reports for the years 2005 to 2007 revealed that the limit values for PM10 particles had been exceeded in a great number of urban zones and agglomerations. Moreover, the most recent data forwarded by Italy, which relate to the year 2009, indicate that the exceeding of daily and/or annual limit values has continued in 70 zones at least.

It follows that Italy has failed to fulfil its obligations under Article 5(1) of Directive 1999/30 in terms both of zones and of years.

(1) OJ 1999 L 163, p. 41.

(2) OJ 2008 L 152, p. 1.
EN Official Journal of the European Union C 145/16

Action brought on 4 March 2011 — European Commission v French Republic

(Case C-119/11)

2011/C 145/22

Language of the case: French

Parties

Applicant: European Commission (represented by: F. Dintilhac and C. Soulay, agents)

Defendant: French Republic

Form of order sought

— Declare that, by applying, since 1 January 2007, a VAT rate of 2,10 % to income from charges for admission to the first performances of concerts held in establishments where refreshments may be obtained during the performance, the French Republic has failed to fulfil its obligations under Articles 99 and 110 of the VAT Directive; (1)

— order French Republic to pay the costs.

Pleas in law and main arguments

By the present action, the Commission complains that, since 1 January 2007, the defendant has applied a VAT rate of 2,10 % to income from charges for admission to the first performances of concerts held in establishments where refreshments may be obtained during the performance, instead of the earlier rate of 5,5 %.

The Commission points out that, under Article 110 of the VAT Directive, Member States which, at 1 January 1991, were applying reduced rates of VAT lower than the minimum rate of 5 % may continue to apply those rates. However, Member States are not permitted under that provision to introduce new derogations or extend the scope of the derogations existing as at 1 January 1991 where they have restricted the scope of the derogations after that date. However, that is exactly what occurred in this case, since, as from 1 January 1997, the defendant restricted the scope of the derogation existing as at 1 January 1991 in connection with reduced rates of VAT and expressly excluded from this income relating to first performances generated by the sale of tickets ‘which give access solely to concerts held in establishments where refreshments may be obtained during the performance’. By extending the scope of a derogation from the Directive, the French Republic has therefore disregarded the purpose of the Directive.

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 152/10

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 22 February 2011 — Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and Others

(Case C-78/11)

2011/C 152/18

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Asociación Nacional de Grandes Empresas de Distribución (ANGED)

Defendants: Federación de Asociaciones Sindicales (FASGA), Federación de Trabajadores Independientes de Comercio (FETICO), Federación Estatal de Trabajadores de Comercio, Hostelería, Turismo y Juego de UGT, Federación del Comercio, Hostelería y Turismo de CC.OO

Question referred

Does Article 7(1) of Directive 2003/88/EC (1) of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of national legislation which does not permit interruption of a period of leave so that the full period — or the remaining period — can be taken at a later time if a worker is temporarily incapacitated when he is on leave?

(1) OJ 2003 L 299, p. 9.