ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 282/11

Judgment of the Court (First Chamber) of 1 October 2009 (reference for a preliminary ruling from the Finanzgericht Köln — Germany) — Gaz de France — Berliner Investissement SA v Bundeszentralamt für Steuern

(Case C-247/08) (1)

(Free movement of capital - Profits distributed to a parent company exempt from withholding tax in the Member State of the subsidiary - Concept of ‘company of a Member State’ - ‘Société par actions simplifiée’ under French law)

2009/C 282/19

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: Gaz de France — Berliner Investissement SA

Defendant: Bundeszentralamt für Steuern

Re:

Reference for a preliminary ruling — Finanzgericht Köln (Germany) — Interpretation of Articles 43 EC, 48 EC, 56(1) EC and 58(1)(a) and (3) EC, and Article 2(a) and paragraph (f) of the Annex to 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 (OJ 1990 L 225, p. 6) — Concept of ‘company of a Member State’ — Refusal, in the Member State of the subsidiary, to grant an exemption from withholding tax to a parent company taking the legal form of a ‘société par actions simplifiée’ in French law, since that form of company does not, at the material time, appear on the list in the annex to the directive

Operative part of the judgment

1. Article 2(a) 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, read in conjunction with point (f) of the annex to that directive, must be interpreted as meaning that a company under French law in the form of a ‘société par actions simplifiée’ cannot be considered to be a ‘company of a Member State’ within the meaning of that directive before that directive was amended by Council Directive 2003/123/EC of 22 December 2003;

2. Examination of the question has not revealed any factor of such a kind as to affect the validity of Article 2(a) of Directive 90/435 read in conjunction with point (f) of the annex thereto and Article 5(1) of that directive.

(1) OJ C 223, 30.08.2008.
EN Official Journal of the European Union C 282/14

Judgment of the Court (Fifth Chamber) of 24 September 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-504/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/70/EC - Civil servants and politicians - Money laundering - Incomplete transposition)

2009/C 282/25

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and E. Adsera Ribera, acting as Agents)

Defendant: Kingdom of Spain (represented by: J. López-Medel Bascones, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the measures necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (OJ 2006 L 214, p. 29)

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis, the Kingdom of Spain has failed to fulfil its obligations under Article 5 of that directive;

2. orders the Kingdom of Spain to pay the costs.

(1) OJ C 6, 10.1.2009.
EN Official Journal of the European Union C 312/7

Judgment of the Court (Third Chamber) of 29 October 2009 — Commission of the European Communities v Republic of Finland

(Case C-246/08) (1)

(Failure of a Member State to fulfil obligations - Sixth VAT Directive - Article 2(1) and Article 4(1) and (2) - Meaning of ‘economic activities’ - Public legal aid offices - Legal aid services provided in legal proceedings in return for a part contribution paid by the recipient - Meaning of ‘direct link’ between the service rendered and the consideration received)

2009/C 312/10

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: P. Aalto and D. Triantafyllou, acting as Agents)

Defendant: Republic of Finland (represented by: A. Guimaraes-Purokoski, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 2(1) and 4(1), (2) and (5) 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 — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — National legislation providing for different treatment for VAT purposes of legal advice services depending on whether they are provided by private legal advisers or by advisers working in public legal aid offices — Distortions of competition

Operative part of the judgment

The Court:

1. Dismisses the action.

2. Orders the Commission of the European Communities to pay the costs.

(1) OJ C 209, 15.08.2008.
EN Official Journal of the European Union C 297/15

Judgment of the Court (Fourth Chamber) of 22 October 2009 — Commission of the European Communities v Republic of Portugal

(Case C-438/08) (1)

(Failure of a Member State to fulfil obligations - Freedom of establishment - Directive 96/96/EC - National legislation - Restrictive conditions for access to the activity of vehicle inspection - Article 45 EC - Activities connected with the exercise of official authority - Road safety - Proportionality)

2009/C 297/17

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and M. Teles Romão, acting as Agents)

Defendant: Republic of Portugal (represented by: L. Fernandes and A. Pereira de Miranda, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 43 EC — Legislation imposing restrictions on the freedom of establishment of entities wishing to carry on vehicle inspection activity in Portugal

Operative part of the judgment

The Court:

1. Declares that, by imposing restrictions on the freedom of establishment of bodies of other Member States intending to carry on in Portugal the activity of vehicle inspection, namely, the making of the grant of authorisations subject to the public interest, the requirement of a minimum share capital of EUR 100 000, the limiting of the undertakings’ company objects and the imposition of incompatibility rules on members, managers and directors, the Portuguese Republic has failed to fulfil its obligations under Article 43 EC;

2. Orders the Portuguese Republic to pay the costs.

(1) OJ C 313, 6.12.2008.
EN Official Journal of the European Union C 24/14

Judgment of the Court (Sixth Chamber) of 3 December 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-475/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/55/EC - Internal market in natural gas - Definitive designation of system operators - Decision exempting major new gas infrastructures from the application of certain provisions of Directive 2003/55/EC - Publication, consultation and notification obligations)

2010/C 24/22

Language of the case: French

Parties

Applicant: European Commission (represented by: M. Patakia and B. Schima, Agents)

Defendant: Kingdom of Belgium (represented by: C. Pochet, Agent, J. Scalais and O. Vanhulst, avocats)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt all the provisions necessary to comply with Articles 7, 11 and 18, in conjunction with Article 25(2), and Article 22(3)(d) and (e) and (4) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57) — Failure to designate systems operators for the transmission and storage of liquefied natural gas — No requirement to publish the decision exempting new large natural gas facilities from the application of the directive — No requirement to consult the other Member States or regulatory authorities concerned by the interconnection of those facilities.

Operative part of the judgment

The Court:

1. Declares that, by failing to designate transmission, storage and liquefied natural gas system operators on a definitive basis as required under Article 7 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, and by failing to transpose Article 22(3)(d) and (e) and (4) of that directive, the Kingdom of Belgium has failed to fulfil its obligations under those provisions;

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

(1) OJ C 32, 7.2.2009.
EN Official Journal of the European Union C 11/4

Judgment of the Court (Sixth Chamber) of 12 November 2009 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland)) — Elektrownia Pątnów II sp. z o.o. v Dyrektor Izby Skarbowej w Poznaniu

(Case C-441/08) (1)

(Indirect taxes on the raising of capital - Loans taken up by a capital company before the accession of the Member State to the European Union - Liability to capital duty under national legislation - Conversion of the loans into shares after accession of the Member State to the European Union - Capital duty payable on that transaction increasing the capital - Immediate application of the new rules)

2010/C 11/06

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Elektrownia Pątnów II sp. z o.o.

Respondent: Dyrektor Izby Skarbowej w Poznaniu

Re:

Reference for a preliminary ruling — Naczelny Sąd Administracyjny (Poland) — Interpretation of Article 4(1)(c), the second indent of Article 5(3) and Article 10 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) — Loans taken up by a capital company and subjected to capital duty under national legislation before the Member State’s accession to the European Union — Imposition of capital duty on an increase in capital resulting from the conversion of the loans into shares in the company after the Member State’s accession to the European Union

Operative part of the judgment

The second indent of Article 5(3) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, requires that, in determining the amount of capital duty chargeable on an increase in a company’s capital arising from the conversion into shares — following the Republic of Poland’s accession to the European Union — of loans taken up by that company prior to that accession, account be taken of the previous taxation of those loans on the basis of the national law in force at the material time.

(1) OJ C 327, 20.12.2008.
1.

Declares that, by adopting Article 49 of Statutory Instrument No 329 of 2006 and Article 51 of Statutory Instrument No 50 of 2007, Ireland established the rules governing the notification of contracting authorities and entities award decisions and their reasoning to tenderers in such a way that by the time that tenderers are fully informed of the reasons for the rejection of their offer, the standstill period preceding the conclusion of the contract may already have expired, and that, by so doing, Ireland has failed to fulfil its obligations under Articles 1(1) and 2(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992, and Articles 1(1) and 2(1) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors;
EN Official Journal of the European Union C 24/14

Judgment of the Court (Eighth Chamber) of 3 December 2009 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission

(Case C-476/08 P) (1)

(Appeal - Regulations (EC, Euratom) Nos 1605/2002 and 2342/2002 - Public contracts awarded by the Community institutions on their own account - Error in the evaluation committee’s report - Obligation to state reasons for the rejection of the tender’s bid)

2010/C 24/23

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: (N. Korogiannakis, dikigoros)

Other party to the proceedings: European Commission (represented by: M. Wilderspin and E. Manhaeve, Agents)

Re:

Appeal brought against the judgment of the Court of First Instance (Third Chamber) of 10 September 2008 in Case T-59/05 Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission of the European Communities by which the Court of First Instance dismissed an action for the annulment of the Commission’s decision of 23 November 2004 rejecting the tender submitted by the appellant in the tendering procedure relating to the provision of development, maintenance and related support services for the financial information systems of the Directorate-General for Agriculture and of the decision awarding the contract to another tenderer — Obligation to state reasons for the rejection of a submitted tender

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

(1) OJ C 19, 24.1.2009.
1.

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research, the Kingdom of Spain has failed to fulfil its obligations under that directive;
1.

Declares that: — by reason of the fact that the National Roads Authority did not inform the unsuccessful tenderer of its decision to award the contract for the design, construction, financing and operation of the Dundalk Western Bypass, and — by maintaining in force Order 84A(4) of the Rules of the Superior Courts, in the version resulting from Statutory Instrument No 374 of 1998, in so far as it gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods for bringing an action are to be determined, Ireland has failed — as regards the first head of claim — to fulfil its obligations under Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992, and Article 8(2) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997 and — as regards the second head of claim — to fulfil its obligations under Article 1(1) of Directive 89/665, as amended by Directive 92/50;
1.

Declares that, — first, by providing generally that fishing, aquaculture, hunting and other hunting-related activities practised under the conditions and in the areas authorised by the laws and regulations in force do not constitute activities causing disturbance or having such an effect, and — second, by systematically exempting works and developments provided for in Natura 2000 contracts from the procedure of assessment of their implications for the site, and — by systematically exempting works and development programmes and projects which are subject to a declaratory system from that procedure, the French Republic has failed to fulfil its obligations under Article 6(2) and Article 6(3) respectively of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;
EN Official Journal of the European Union C 113/8

Judgment of the Court (Fourth Chamber) of 4 March 2010 — Commission of the European Communities v Italian Republic

(Case C-297/08) (1)

(Failure of a Member State to fulfil obligations - Environment - Directive 2006/12/EC - Articles 4 and 5 - Waste management - Management plan - Integrated and adequate network of disposal installations - Danger for human health or the environment - Force majeure - Civil disturbances - Organised crime)

2010/C 113/11

Language of the case: Italian

Parties

Applicant: European Commission (represented by: C. Zadra, D. Recchia and J.-B. Laignelot, Agents)

Defendant: Italian Republic (represented by: G. Palmieri, acting as Agent, and G. Aiello, avvocato dello Stato)

Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, Agent and K. Bacon, Barrister)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 4 and 5 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9) — Region of Campania

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt, for the region of Campania, all the measures necessary to ensure that waste is recovered and disposed of without endangering human health and without harming the environment and, in particular, by failing to establish an integrated and adequate network of disposal installations, the Italian Republic has failed to fulfil its obligations under Articles 4 and 5 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste;

2. Orders the Italian Republic to pay the costs;

3. Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

(1) OJ C 223, 30.8.2008.
Judgment of the Court (Third Chamber) of 22 April 2010 (references for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Staatssecretaris van Financiën v X (C-536/08), fiscale eenheid Facet BV/Facet Trading BV (C-539/08)

(Joined Cases C-536/08 and C-539/08) (1)

(Sixth VAT Directive - Article 17(2) and (3) - Article 28b(A)(2) - Right to deduction - Transitional arrangements for the taxation of trade between Member States - Place of the intra-Community acquisitions of goods)

(2010/C 161/13)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendants: X (C-536/08), fiscale eenheid Facet BV/Facet Trading BV (C-539/08)

Re:

References for a preliminary ruling — Hoge Raad der Nederlanden (Den Haag) — Interpretation of Article 17(2) and (3) and Article 28b(A)(2) 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 — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Transitional arrangements for the taxation of trade between Member States — Place of intra-Community acquisitions of goods

Operative part of the judgment

Articles 17(2) and (3) and 28b(A)(2) 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 — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 92/111/EEC of 14 December 1992, must be interpreted as meaning that a taxable person coming within the situation referred to in the first subparagraph of Article 28b(A)(2) does not have the right immediately to deduct the input value added tax charged on an intra-Community acquisition.

(1) OJ C 44, 21.2.2009.
1.

Declares that, by making the exemption of dividends distributed by companies resident in Spain subject to a level of holding by the recipient companies in the distributing companies which is higher for recipient companies residing in another Member State than for recipient companies resident in Spain, the Kingdom of Spain has failed to fulfil its obligations under Article 56(1) EC.
EN Official Journal of the European Union C 179/3

Judgment of the Court (First Chamber) of 14 January 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH

(Case C-304/08) (1)

(Directive 2005/29/EC - Unfair commercial practices - National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods or the use of services)

2010/C 179/03

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Plus Warenhandelsgesellschaft mbH

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(2) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22) — Commercial practice coupling the sale of goods with a lottery which permits the customer to participate in the draws of a national lottery when he has accumulated a certain number of bonus points obtained when purchasing goods — National legislation under which a commercial practice whereby the participation of consumers in a prize competition or lottery is conditional on the purchase of goods or the supply of services is in principle unlawful, irrespective of whether the advertising in question affects consumers’ interests

Operative part of the judgment

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for a prohibition in principle, without taking account of the specific circumstances of individual cases, of commercial practices under which the participation of consumers in a prize competition or lottery is made conditional on the purchase of goods or the use of services.

(1) OJ C 247, 27.9.2008.