ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 312/6

Judgment of the Court (Fourth Chamber) of 29 October 2009 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — NCC Construction Danmark A/S v Skatteministeriet

(Case C-174/08) (1)

(Sixth VAT Directive - Article 19(2) - Deduction of input tax - Hybrid taxable person - Goods and services used for both taxable and exempt activities - Calculation of the deductible proportion - Definition of ‘incidental real estate transactions’ - Self-supply - Principle of fiscal neutrality)

2009/C 312/08

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: NCC Construction Danmark A/S

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Østre Landsret — Interpretation of the second sentence of Article 19(2) of the 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 — Building business engaged in the sale of buildings constructed by it on its own account with a view to resale — Goods and services used for activities which do and do not give rise to entitlement to deduct VAT paid upstream — Calculation of pro rata deduction — Concept of incidental real estate transactions

Operative part of the judgment

1. Article 19(2) of the 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 is to be interpreted as meaning that the sale, in the case of a building business, of buildings constructed on its own account cannot be classified as an ‘incidental real estate transaction’ within the meaning of that provision, where that activity constitutes the direct, permanent and necessary extension of its business. In those circumstances, it is not necessary, in this case, to assess to what extent that sales activity, viewed separately, entails a use of goods and services on which value added tax is payable.

2. The principle of fiscal neutrality cannot preclude a building business, which is required to pay value added tax on supplies relating to construction effected on its own account (self-supply), from being unable fully to deduct the value added tax relating to the general costs incurred thereby, since the turnover from the sale of buildings thus constructed is exempt from value added tax.

(1) OJ C 171, 5.7.2008.
EN Official Journal of the European Union C 51/9

Judgment of the Court (Fourth Chamber) of 23 December 2009 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy)) — Serrantoni Srl, Consorzio stabile edili Scrl v Comune di Milano

(Case C-376/08) (1)

(Public works contracts - Directive 2004/18/EC - Articles 43 EC and 49 EC - Principle of equal treatment - Groups of undertakings - Prohibition on competing participation in the same tendering procedure by a ‘consorzio stabile’ (‘permanent consortium’) and one of its member companies)

2010/C 51/13

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

Applicants: Serrantoni Srl, Consorzio stabile edili Scrl

Defendant: Comune di Milano

Intervening parties: Bora Srl Construzioni edili, Unione consorzi stabili Italia (UCSI), Associazione nazionale imprese edili (ANIEM),

Re:

Reference for a preliminary ruling — Tribunale amministrativo regionale per la Lombardia — Interpretation of Articles 39 EC, 43 EC, 49 EC and 81 EC and of Article 4 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — National legislation providing for the automatic exclusion of member companies of a consortium of economic operators, where the consortium itself participates in the procedure.

Operative part of the judgment

Community law must be interpreted as precluding national legislation, such at that at issue in the main proceedings, which provides that, when a public contract is being awarded, with a value below the threshold laid down in Article 7(c) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, but of certain cross-border interest, both a permanent consortium and its member companies are automatically excluded from participating in that procedure and face criminal sanctions where those companies have submitted tenders in competition with the consortium’s tender in the context of the same procedure, even if the consortium’s tender was not submitted on behalf and in the interests of those companies.

(1) OJ C 327, 20.12.2008.
EN Official Journal of the European Union C 24/10

Judgment of the Court (Fourth Chamber) of 10 December 2009 (Reference for a preliminary ruling from the Tribunal Superior de Justicia de Madrid (Spain)) — Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo, Bartolomé Valera Huete v Unclaimed estate of Rafael de las Heras Dávila and Sagrario de las Heras Dávila

(Case C-323/08) (1)

(Reference for a preliminary ruling - Protection of workers - Collective redundancies - Directive 98/59/EC - Termination of contracts of employment as a result of the death of the employer)

2010/C 24/15

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Madrid

Parties to the main proceedings

Applicants: Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo and Bartolomé Valera Huete

Defendants: Unclaimed estate of Rafael de las Heras Dávila and Sagrario de las Heras Dávila

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Madrid — Interpretation of Articles 1, 2, 3, 4 and 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16) — National legislation restricting the concept of redundancy solely to dismissals made on economic, technical, organisational or production grounds — Termination of contracts of employment by reason of the death, retirement or incapacity of the employer — Different compensation in the two cases — Whether compatible with the Charter of fundamental rights of the European Union and the Community Charter of the fundamental social rights of workers

Operative part of the judgment

1. Article 1(1) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as not precluding national legislation according to which the termination of contracts of employment of a number of workers, whose employer is a natural person, as a result of the death of that employer is not classified as collective redundancy;

2. Directive 98/59 does not preclude national legislation which provides for different compensation depending on whether the workers lost their jobs as a result of the death of the employer or as a result of a collective redundancy.

(1) OJ C 236, 13.9.2008.
EN Official Journal of the European Union C 63/8

Judgment of the Court (Third Chamber) of 28 January 2010 — European Commission v French Republic

(Case C-333/08) (1)

(Failure of a Member State to fulfil obligations - Free movement of goods - Articles 28 EC and 30 EC - Quantitative restriction on imports - Measure having equivalent effect - Prior authorisation scheme - Processing aids, and foodstuffs whose preparation involved the use of processing aids, from other Member States where they are lawfully manufactured and/or marketed - Procedure allowing economic operators to obtain the entry of such substances on a ‘positive list’ - Mutual recognition clause - National legislative context creating a situation of legal uncertainty for economic operators)

2010/C 63/12

Language of the case: French

Parties

Applicant: European Commission (represented by: B. Stromsky, Agent)

Defendant: French Republic (represented by: G. de Bergues and R. Loosli-Surrans, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 28 EC — Scheme of prior authorisation for processing aids, and foodstuffs the preparation of which involved the use of processing aids, from other Member States where they were lawfully manufactured and/or marketed — Lack of justification and/or non-compliance with the principle of proportionality

Operative part of the judgment

The Court:

1. By laying down, for processing aids and foodstuffs whose preparation involved the use of processing aids from other Member States where they are lawfully manufactured and/or marketed, a prior authorisation scheme not complying with the principle of proportionality, the French Republic has failed to fulfil its obligations under Article 28 EC.

2. The French Republic is ordered to pay the costs.

(1) OJ C 285, 8.11.2008.
EN Official Journal of the European Union C 63/10

Judgment of the Court (First Chamber) of 21 January 2010 — Audi AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-398/08 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Articles 7(1)(b) and 63 - Word mark Vorsprung durch Technik - Marks consisting of advertising slogans - Distinctive character - Application for a trade mark in respect of a large number of goods and services - Relevant public - Global assessment and reasoning - New documents)

2010/C 63/15

Language of the case: German

Parties

Appellant: Audi AG (represented by: S.O. Gillert and F. Schiwek, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

Re:

Appeal against the judgment of 9 July 2008 in Case T-70/06 Audi v OHIM by which the Court of First Instance (Fourth Chamber) dismissed the action for annulment of the decision of the Second Board of Appeal of OHIM of 16 December 2005 dismissing in part the appeal against the examiner’s decision refusing registration of the word mark ‘VORSPRUNG DURCH TECHNIK’ for goods and services in Classes 9, 12, 14, 25, 28, 37 to 40 and 42 — Marks consisting of advertising slogans — Distinctive character — Application of specific assessment criteria — Insufficient reasons stated as regards how the relevant public was determined — Consideration of pleas submitted for the first time in the procedure before the Court of First Instance

Operative part of the judgment

The Court:

1. Sets aside the judgment of 9 July 2008 in Case T-70/06 Audi v OHIM (Vorsprung durch Technik), in so far as the Court of First Instance of the European Communities held that the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) had not infringed Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 3288/94 of 22 December 1994, in adopting its decision of 16 December 2005 (Case R 237/2005-2);

2. Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 December 2005 (Case R 237/2005-2) in so far as, on the basis of Article 7(1)(b) of Regulation No 40/94 as amended by Regulation No 3288/94, that decision refused in part the application for registration of the mark Vorsprung durch Technik;

3. Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the costs of the proceedings at first instance and the appeal proceedings.

(1) OJ C 301, 22.11.2008.
EN Official Journal of the European Union C 113/7

Judgment of the Court (Third Chamber) of 4 March 2010 — European Commission v Ireland

(Case C-221/08) (1)

(Failure of a Member State to fulfil obligations - Directive 95/59/EC - Taxes other than turnover taxes which affect the consumption of manufactured tobacco - Article 9(1) - Free determination, by manufacturers and importers, of the maximum retail selling prices of their products - National legislation imposing a minimum retail selling price for cigarettes - Justification - Protection of public health - World Health Organisation Framework Convention on Tobacco Control)

2010/C 113/09

Language of the case: English

Parties

Applicant: European Commission (represented by: R. Lyal and W. Mölls, Agents)

Defendant: Ireland (represented by: D. O’Hagan, Agent, G. Hogan SC)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 9(1) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40) — National law imposing minimum and maximum retail prices for manufactured tobacco

Operative part of the judgment

The Court:

1. Declares that, by imposing minimum retail prices for cigarettes, Ireland has failed to fulfil its obligations under Article 9(1) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, as amended by Council Directive 2002/10/EC of 12 February 2002;

2. Declares that, by not providing the information required by the European Commission in order to enable it to fulfil its task of monitoring compliance with Directive 95/59, as amended by Directive 2002/10, Ireland has failed to fulfil its obligations under Article 10 EC;

3. Dismisses the action as to the remainder;

4. Orders Ireland to pay the costs.

(1) OJ C 209, 15.8.2008.
EN Official Journal of the European Union C 134/5

Judgment of the Court (Third Chamber) of 25 March 2010 — European Commission v Kingdom of Spain

(Case C-392/08) (1)

(Failure of a Member State to fulfil obligations - Directive 96/82/EC - Control of major-accident hazards involving dangerous substances - Article 11(1)(c) - Obligation to draw up external emergency plans - Time-limit)

2010/C 134/06

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán and A. Sipos, Agents)

Defendant: Kingdom of Spain (represented by: B. Plaza Cruz, Agent)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 11(1)(c) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC (OJ 1997 L 10, p. 13) — Failure to draw up certain external emergency plans for the measures to be taken outside the establishment

Operative part of the judgment

The Court:

1. Declares that, by failing to draw up external emergency plans for all establishments to which Article 9 of Directive 96/82/EC of 9 December 1996 on the control of major accident hazards involving dangerous substances applies, the Kingdom of Spain has failed to fulfil its obligations under Article 11(1)(c) thereof;

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

(1) OJ C 272, 25.10.2008.
Judgment of the Court (Grand Chamber) of 20 April 2010 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Italy) — Federutility, Assogas, Libarna Gas SpA, Collino Commercio SpA, Sadori Gas SpA, Egea Commerciale, E.On Vendita Srl, Sorgenia SpA v Autorità per l’energia elettrica e il gas

(Case C-265/08) (1)

(Directive 2003/55/EC - Internal market in natural gas - State intervention on the price for the supply of natural gas after 1 July 2007 - Public service obligations of undertakings operating in the gas sector)

(2010/C 161/07)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

Applicants: Federutility, Assogas, Libarna Gas SpA, Collino Commercio SpA, Sadori Gas SpA, Egea Commerciale, E.On Vendita Srl, Sorgenia SpA

Defendant: Autorità per l’energia elettrica e il gas

Re:

Reference for a preliminary ruling — Tribunale amministrativo regionale per la Lombardia — Interpretation of Articles 3(2) and 23 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) — National legislation providing for the fixing of prices for the supply of natural gas to domestic customers

Operative part of the judgment

Articles 3(2) and 23(1) 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 do not preclude national legislation such as that at issue in the main proceedings, which permits determination of the price level for the supply of natural gas by the definition of ‘reference prices’, such as those at issue in the main proceedings, after 1 July 2007, provided that such intervention:

— pursues a general economic interest consisting in maintaining the price of the supply of natural gas to final consumers at a reasonable level having regard to the reconciliation which Member States must make, taking account of the situation in the natural gas sector, between the objective of liberalisation and that of the necessary protection of final consumers pursued by Directive 2003/55;

— compromises the free determination of prices for the supply of natural gas after 1 July 2007 only in so far as is necessary to achieve such an objective in the general economic interest and, consequently, for a period that is necessarily limited in time;

— is clearly defined, transparent, non discriminatory and verifiable, and guarantees equal access for EU gas companies to consumers.

(1) OJ C 236, 13.09.2008.
1.

Subject, inter alia, to determination by the referring court, as specified in paragraph 38 of this judgment, of the nature of the ‘refund’ of the ‘adjustment surtax’ at issue in the cases before it, made by an Italian company to a Netherlands company, pursuant to Article 10(3) of the Convention for the avoidance of double taxation with respect to taxes on income and on capital and for prevention of fiscal evasion (with protocol), signed at The Hague on 8 May 1990, in so far as it applies to that refund, a withholding tax such as that at issue in the cases in the main proceedings is not a withholding tax on distributed profits generally prohibited by Article 5(1) 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, in the version thereof in force at the material time. However, if the referring court were to find that the ‘refund’ of the ‘adjustment surtax’ is not fiscal in nature, a withholding tax such as that at issue in the cases before it would be a withholding tax on distributed profits which is, as a rule, prohibited by Article 5(1) of Directive 90/435.
1.

Declares that, having regard to the tourism and property complex ‘Is Arenas’, which affects the site ‘Is Arenas’; — by failing to adopt, before 19 July 2006, date when the site ‘Is Arenas’ was included on the list of sites of Community importance, preservation measures which, having regard to the conservation aim of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, are suitable for the purposes of preserving the relevant ecological interest represented at national level by the proposed site of Community importance, and in particular by failing to prevent an activity likely seriously to endanger the ecological characteristics of the site; and — by failing to adopt, after 19 July 2006, appropriate measures to prevent the deterioration of natural habitats in respect of which that site of Community importance was designated; the Italian Republic has failed to fulfil its obligations under Council Directive 92/43 and, more specifically, with regard to the second plea in law, Article 6(2) thereof;
2.

On a proper interpretation of Article 49 EC, where a regional public monopoly on sporting bets and lotteries has been established with the objective of preventing incitement to squander money on gambling and of combating gambling addiction, and yet a national court establishes at the same time: — that other types of games of chance may be exploited by private operators holding an authorisation; and — that in relation to other games of chance which do not fall within the said monopoly and which, moreover, pose a higher risk of addiction than the games which are subject to that monopoly, the competent authorities pursue policies of expanding supply, of such a nature as to develop and stimulate gaming activities, in particular with a view to maximising revenue derived from the latter; that national court may legitimately be led to consider that such a monopoly is not suitable for ensuring the achievement of the objective for which it was established by contributing to reducing the opportunities for gambling and to limiting activities within that area in a consistent and systematic manner. The fact that the games of chance subject to the said monopoly fall within the competence of the regional authorities, whereas those other types of games of chance fall within the competence of the federal authorities, is irrelevant in that respect.