ddrg/super_eurlex huggingface dataset:
Case C‑382/16

Hornbach-Baumarkt-AG

v

Finanzamt Landau

(Request for a preliminary ruling from the Finanzgericht Rheinland-Pfalz)

(Reference for a preliminary ruling — Freedom of establishment — Corporation tax — Legislation of a Member State — Calculation of the taxable revenue of companies — Advantage granted gratuitously by a resident company to a non-resident company to which is it linked by a relationship of interdependence — Correction of the taxable income of the resident company — No correction of taxable income in the event of an identical advantage granted by a resident company to another resident company to which it is linked by such a relationship — Restriction on the freedom of establishment — Justification)

Summary — Judgment of the Court (Second Chamber), 31 May 2018

Freedom of movement for persons — Freedom of establishment — Restrictions — Tax legislation — Corporation tax — Calculation of taxable revenue — Unusual or gratuitous advantages granted between companies having relationships of interdependence — National legislation providing that the resident company is to be taxed only in respect of advantages granted by that company to a non-resident company — Lawfulness — Condition — National legislation allowing the presentation of evidence of the commercial justification underlying those advantages — Verification a matter for the national court

(Arts 43 EC and 48 EC (now Arts 49 TFEU and 54 TFEU))

Article 43 EC (now Article 49 TFEU), in conjunction with Article 48 EC (now Article 54 TFEU), must be interpreted as, in principle, not precluding national legislation, such as that at issue in the main proceedings, pursuant to which the income of a company resident in a Member State which granted to a company established in another Member State with which it has a relationship of interdependence advantages under terms that depart from those that would have been agreed on by unrelated third parties under the same or similar circumstances, must be calculated as it would have been if the terms which would have been agreed with unrelated third parties had been applicable, and be corrected, despite the fact that such a correction is not made in respect of taxable income when the same advantages are granted by a resident company to another resident company with which it has a relationship of interdependence. However, it is for the national court to determine whether the legislation at issue in the main proceedings affords the resident taxpayer the opportunity to prove that the terms were agreed on for commercial reasons resulting from its status as a shareholder of the non-resident company.

(see para. 59, operative part)
Article 35 TFEU prohibits quantitative restrictions on exports between Member States, as well as all measures having equivalent effect. In that regard, the Court has held that a national measure applicable to all traders active in the national territory which has a greater effect on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market of that Member State is covered by the prohibition laid down by Article 35 TFEU (see judgment of 21 June 2016, New Valmar, C‑15/15, EU:C:2016:464, paragraph 36 and the case-law cited).

It follows from that definition that classification as a ‘measure having equivalent effect to a quantitative restriction on exports’ presupposes the existence of restrictive effects on trade (judgment of 21 June 2016, New Valmar, C‑15/15, EU:C:2016:464, paragraph 42). Those effects may be of merely minor importance (judgment of 1 April 2008, Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 52), provided that they are not too uncertain or too indirect (judgment of 21 June 2016, New Valmar, C‑15/15, EU:C:2016:464, paragraph 45 and the case-law cited). The prohibition of aid linked to exports to Member States laid down in Article 1(1)(d) of Regulation No 1998/2006, even if it does not exceed the de minimis threshold, has no effect on trade in itself, since it merely requires the Member States to refrain from granting a certain type of aid. Consequently, that provision cannot amount to a measure having an effect equivalent to a quantitative restriction on exports, prohibited by Article 35 TFEU.

However, the main effect of the fundamental rules of the internal market and of the general aid scheme which forms part of it is that the exclusion of export aid from the scope of Regulation No 1998/2006 is justified in the light of the actual purpose of Article 107 TFEU. Export aid, even of a modest amount, is, by definition, one of the forms of aid which may affect trade between Member States, both directly by conferring a competitive advantage on the products exported and indirectly by inciting the other Member States to take symmetric countermeasures intended to counterbalance that competitive advantage. As the Commission argued during the hearing, allowing such aid would be particularly detrimental to the functioning of the internal market. It follows that Article 35 TFEU cannot justify a measure contrary to Article 107 TFEU.

(see paras 38, 43-47)
The last sentence of Article 1 of Protocol (No 7) on the Privileges and Immunities of the European Union must be interpreted as meaning that prior authorisation from the Court is not necessary when a third party initiates attachment proceedings seeking to attach a claim against a Member State body that owes a corresponding debt to the debtor of the third party where that debtor is a beneficiary of funds granted for the purpose of implementing projects co-financed by the European Social Fund.

Thus, payments made by the Commission to the Member States under the Funds entail a transfer of assets from the EU budget to the budgets of the Member States. However, since those assets are withdrawn from the EU budget and transferred to the Member States, they cannot be regarded, once paid out, as assets of the European Union, within the meaning of the last sentence of Article 1 of the Protocol.

The fact that such assets are designated for the implementation of EU policies is irrelevant in that regard. As the Advocate General stated, in essence, in point 44 of her Opinion, the relationship between the co-financing provided by the European Union, under the ESF, and the implementation of a given project is too indirect for it to be concluded that the sums that the authorities of Member States owe to the beneficiaries for implementing those projects constitute EU assets and, accordingly, must be covered by the protection against attachment afforded to assets of the European Union under the last sentence of Article 1 of the Protocol so as to prevent interference with the functioning and independence of the European Union.

(see paras 39-41, 45, 46, operative part)
Case C‑645/16

Conseils et mise en relations (CMR) SARL

v

Demeures terre and tradition SARL

(Request for a preliminary ruling from the Cour de cassation (France))

(Reference for a preliminary ruling — Self-employed commercial agents — Directive 86/653/EEC — Right of the commercial agent to an indemnity or compensation for damage following termination of the commercial agency contract — Article 17 — Exclusion from the right to indemnity in the event of termination of the contract during the trial period provided for in the contract)

Summary — Judgment of the Court (Fourth Chamber), 19 April 2018

Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Right of the commercial agent to an indemnity or compensation for damage following termination of the commercial agency contract — Exclusion from the right to indemnity in the event of termination of the contract during the trial period provided for in the contract — Not permissible

(Council Directive 86/653, Art. 17)

Article 17 of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as meaning that the indemnity and compensation regimes laid down by that article, in paragraphs 2 and 3 respectively, in the event of termination of the commercial agency contract are applicable where termination occurs during the trial period provided for by the contract.

The interpretation that no indemnity is payable in the event of termination of the commercial agency contract during the trial period is incompatible with the mandatory nature of the regime established by Article 17 of Directive 86/653.

(see paras 36, 38, operative part)
The provisions of the Agreement establishing an Association between the European Economic Community and Turkey signed on 12 September 1963 at Ankara by the Republic of Turkey, of the one part, and the Member States of the EEC and the Community, of the other part, concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, the Additional Protocol signed on 23 November 1970 at Brussels, concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, and Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union must be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings, under which road haulage undertakings with their seat in Turkey can transport goods by road to that Member State or through its territory only if they have passes issued within the limits of a quota determined for such transport on the basis of the bilateral agreement concluded between that Member State and the Republic of Turkey or if a permit has been granted to them on the ground of substantial public interest, provided that that legislation is not a new restriction on the freedom to provide services within the meaning of Article 41(1) of the Additional Protocol, which is for the referring court to ascertain.

It should be recalled here that it is apparent from Article 15 of the EEC-Turkey Association Agreement and Article 42(1) of the Additional Protocol that the provisions of EU law on transport and the acts adopted pursuant to those provisions may be extended by the Association Council to the Republic of Turkey, with due regard to its geographical situation. To this date, the Association Council has not taken any measure to extend the provisions of EU law on transport services to the Republic of Turkey, so that in the present state of development of the association between the Republic of Turkey and the European Union there are no specific rules in this field. So, as long as the Association Council has not adopted rules on transport services pursuant to Article 15 of the EEC-Turkey Association Agreement and Article 42(1) of the Additional Protocol, the conditions of access of Turkish hauliers to the EU transport market remain governed by the national legislation of the Member States and the bilateral agreements concluded between the Member States and the Republic of Turkey.

(see paras 45-47, 58, operative part)
78

The Council criticises the General Court for having assumed, in paragraph 73 of the judgment under appeal, that, if the Liberalisation Agreement applied to Western Sahara, the Front Polisario may automatically be directly and individually concerned by the decision at issue. Such a presumption, the Council submits, is erroneous in law. As the General Court itself previously held in the order of 3 July 2007, Commune de Champagne and Others v Council and Commission (T‑212/02, EU:T:2007:194, paragraphs 90 to 94), a Council decision relating to the conclusion of an international agreement between the European Union and a third State has no legal effect in the territory of the other party to that agreement. Thus, the situation of such a territory is governed solely by the provisions adopted by that other party in the exercise of its sovereign powers. Moreover, the sole cause of the effects which that agreement produces on that territory is the fact that, in deciding to ratify that agreement, that other party has agreed to be bound by it and has undertaken to take the steps necessary to ensure the fulfilment of the obligations arising from it. Accordingly, allowing that an action for annulment of the Council decision on the conclusion of an international agreement is admissible in so far as that action concerns the effects of the international agreement on the territory of the other party would lead the Court of the European Union to exceed its jurisdiction by ruling on the legality, under EU law, of the rights or obligations resulting, for a third State, from an agreement to which the latter has subscribed freely and at its absolute discretion. That, the Council submits, is precisely what the General Court did in the present case, by making the application of the Liberalisation Agreement to Western Sahara a prerequisite for the Front Polisario’s standing. Finally, the Council notes that the fact that Western Sahara is a ‘disputed territory’ in international law has no bearing on the reasoning of the General Court in that order, to which it subscribes in its entirety.
5

Article 7 of that directive provides: ‘1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. 2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. 3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted. 4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context: (a) the main characteristics of the product, to an extent appropriate to the medium and the product; (b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting; (c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable; (d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence; (e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right. 5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.’
5

Article 3 of Directive 2008/69 provides: ‘1. Member States shall in accordance with Directive 91/414/EEC, where necessary, amend or withdraw existing authorisations for plant protection products containing the active substances listed in the Annex as active substances by 30 June 2009. By that date they shall in particular verify that the conditions in Annex I to that Directive relating to the active substances listed in the Annex are met, with the exception of those identified in part B of the entry concerning that active substance, and that the holders of the authorisations have, or have access to, dossiers satisfying the requirements of Annex II to that Directive in accordance with the conditions of Article 13 of that Directive. 2. By way of derogation from paragraph 1, for each authorised plant protection product containing one of the active substances listed in the Annex as either the only active substance or as one of several active substances all of which were listed in Annex I to Directive 91/414/EEC by 31 December 2008 at the latest, Member States shall re-evaluate the product in accordance with the uniform principles provided for in Annex VI to Directive 91/414/EEC, on the basis of a dossier satisfying the requirements of Annex III to that Directive and taking into account part B of the entry in Annex I to that Directive concerning the active substances listed in the Annex. On the basis of that evaluation, they shall determine whether the product satisfies the conditions set out in Article 4(1)(b), (c), (d) and (e) of Directive 91/414/EEC. …’
5

Article 4(1) and (3) of the directive provides: ‘1. Where a parent company or its permanent establishment, by virtue of the association of the parent company with its subsidiary, receives distributed profits, the Member State of the parent company and the Member State of its permanent establishment shall, except when the subsidiary is liquidated, either: (a) refrain from taxing such profits to the extent that such profits are not deductible by the subsidiary, and tax such profits to the extent that such profits are deductible by the subsidiary; or (b) tax such profits while authorising the parent company and the permanent establishment to deduct from the amount of tax due that fraction of the corporation tax related to those profits and paid by the subsidiary and any lower-tier subsidiary, subject to the condition that at each tier a company and its lower-tier subsidiary fall within the definitions laid down in Article 2 and meet the requirements provided for in Article 3, up to the limit of the amount of the corresponding tax due. … 3. Each Member State shall retain the option of providing that any charges relating to the holding and any losses resulting from the distribution of the profits of the subsidiary may not be deducted from the taxable profits of the parent company. Where the management costs relating to the holding in such a case are fixed as a flat rate, the fixed amount may not exceed 5% of the profits distributed by the subsidiary.’
11

Article 4 of Directive 2013/11 is worded as follows: ‘1. For the purposes of this Directive: (a) “consumer” means any natural person who is acting for purposes which are outside his trade, business, craft or profession; (b) “trader” means any natural persons, or any legal person irrespective of whether privately or publicly owned, who is acting, including through any person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession; (c) “sales contract” means any contract under which the trader transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services; (d) “service contract” means any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof; (e) “domestic dispute” means a contractual dispute arising from a sales or service contract where, at the time the consumer orders the goods or services, the consumer is resident in the same Member State as that in which the trader is established; (f) “cross-border dispute” means a contractual dispute arising from a sales or service contract where, at the time the consumer orders the goods or services, the consumer is resident in a Member State other than the Member State in which the trader is established; (g) “ADR procedure” means a procedure, as referred to in Article 2, which complies with the requirements set out in this Directive and is carried out by an ADR entity; (h) “ADR entity” means any entity, however named or referred to, which is established on a durable basis and offers the resolution of a dispute through an ADR procedure and that is listed in accordance with Article 20(2); (i) “competent authority” means any public authority designated by a Member State for the purposes of this Directive and established at national, regional or local level. 2. A trader is established: — if the trader is a natural person, where he has his place of business, — if the trader is a company or other legal person or association of natural or legal persons, where it has its statutory seat, central administration or place of business, including a branch, agency or any other establishment. 3. An ADR entity is established: — if it is operated by a natural person, at the place where it carries out ADR activities, — if the entity is operated by a legal person or association of natural or legal persons, at the place where that legal person or association of natural or legal persons carries out ADR activities or has its statutory seat, — if it is operated by an authority or other public body, at the place where that authority or other public body has its seat.’
6

Article 3 of the same directive, entitled ‘Rights of the consumer’, provides: ‘1. The seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered. 2. In the case of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement, in accordance with paragraph 3, or to have an appropriate reduction made in the price or the contract rescinded with regard to those goods, in accordance with paragraphs 5 and 6.’ 3. In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate. … Any repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods. … 5. The consumer may require an appropriate reduction of the price or have the contract rescinded: – if the consumer is entitled to neither repair nor replacement, or – if the seller has not completed the remedy within a reasonable time, or – if the seller has not completed the remedy without significant inconvenience to the consumer.’