ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 112/15

Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 22 December 2016 — Minister Finansów v Gmina Wrocław

(Case C-665/16)

(2017/C 112/23)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant in cassation: Minister Finansów

Respondent in the appeal in cassation: Gmina Wrocław

Questions referred

Does the transfer, pursuant to the law, of the ownership of immovable property owned by a municipality to the State Treasury in return for payment of compensation, in the case where, under the rules of national law, that immovable property continues to be managed by the mayor of the municipality, who is simultaneously the representative of the State Treasury and the executive body of the municipality, constitute a taxable transaction within the meaning of Article 14(2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (1)

In answering that question, is it significant whether the compensation paid to the municipality consists of an actual payment or is a mere internal accounting transfer within the municipal budget?

(1) OJ 2006 L 347, p. 1.
EN Official Journal of the European Union C 104/24

Request for a preliminary ruling from the Nyíregyházi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 10 November 2016 — Dávid Vámos v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság

(Case C-566/16)

(2017/C 104/35)

Language of the case: Hungarian

Referring court

Nyíregyházi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: Dávid Vámos

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság

Question referred

Is national legislation pursuant to with the tax authority may, when carrying out an ex post tax inspection, preclude the possibility of opting for the personal exemption, on the basis that the taxable person only has that possibility at the time of stating when his taxable activity commences, contrary to EU law?
EN Official Journal of the European Union C 202/8

Appeal brought on 9 December 2016 by Foodcare sp. z o.o. against the judgment of the General Court (Sixth Chamber) delivered on 5 October 2016 in Case T-456/15: Foodcare sp. z o.o. v EUIPO

(Case C-639/16 P)

(2017/C 202/12)

Language of the case: English

Parties

Appellant: Foodcare sp. z o.o. (represented by: M. Żabińska, radca prawny)

Other parties to the proceedings: European Union Intellectual Property Office, Dariusz Michalczewski

By order of 11 May 2017 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 144/18

Request for a preliminary ruling from the Finanzgericht Münster (Germany) lodged on 27 December 2016 — EV v Finanzamt Lippstadt

(Case C-685/16)

(2017/C 144/23)

Language of the case: German

Referring court

Finanzgericht Münster

Parties to the main proceedings

Applicant: EV

Defendant: Finanzamt Lippstadt

Question referred

Are the provisions regarding the free movement of capital and payment transactions in Article 63 et seq. of the Treaty on the Functioning of the European Union to be interpreted as precluding Paragraph 9 No 7 of the Gewerbesteuergesetz 2002, as amended by the 2008 Jahressteuergesetz (annual tax act) of 20 December 2007 (BGBl. I 2007, 3150) in so far as those provisions cause the trade tax deduction of the profit and add-backs by the amount of the profits from shares in a capital company whose management and registered office are located outside the Federal Republic of Germany to be tied to stricter requirements than for the deduction of the profit and the add-backs by the amount of the profits from shares in a non-tax-exempt domestic capital company or by that part of the trade earnings of a domestic undertaking allocated to a permanent establishment not located in Germany?
EN Official Journal of the European Union C 104/34

Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 13 January 2017 — TGE Gas Engineering GmbH — Sucursal em Portugal v Autoridade Tributária e Aduaneira

(Case C-16/17)

(2017/C 104/49)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: TGE Gas Engineering GmbH — Sucursal em Portugal

Defendant: Autoridade Tributária e Aduaneira

Questions referred

Must Articles 44, 45, 132(1)(f), 167, 168, 169, 178, 179 and 192a, 193, 194 and 196 of the VAT Directive (Directive 2006/112), (1) Articles 10 and 11 of Implementing Regulation (EU) No 282/2011 (2) and the principle of neutrality be interpreted as meaning that they preclude the Portuguese tax authorities from refusing the right to deduction of VAT by a branch of a German company, in circumstances where:

— the German company obtained a tax identification number in Portugal to carry out an isolated act, namely ‘acquisition of shares’, corresponding to a non-resident entity without a permanent establishment;

— subsequently, the branch of that German company was registered in Portugal and was assigned its own tax number, as a permanent establishment of that company;

— later, the German company, using the first identification number, entered into a contract with another company to establish an economic interest group (ACE) to carry out a works contract in Portugal;

— subsequently, the branch, using its own tax number, entered into a subcontract with the ACE, setting out the reciprocal services between the branch and the ACE and agreeing that the latter would invoice the subcontractors, in the agreed proportions, for the costs which it incurred;

— the ACE indicated the branch’s tax identification number in the debit notes it issued to invoice costs to that branch, and charged VAT;

— the branch deducted the VAT charged in the debit notes;

— the transactions of the ACE (by way of subcontracting) consist of the transactions of the branch and of the other company forming part of the ACE, these latter having invoiced to the ACE the entire revenue that the ACE invoiced to the developer?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

OJ 2006 L 347, p. 1.

(2) Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax

OJ 2011 L 77, p. 1.
1.

Are Article 56 TFEU and Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System to be interpreted as meaning that they prohibit a Member State from imposing a payment stop and the payment of a surety equal to the outstanding fee for work rendered on the domestic customer if the payment stop and the payment of the surety serve only to secure a possible fine, which would be imposed subsequently in separate proceedings against a service provider established in another Member State? If that question is answered in the negative: a. Are Article 56 TFEU and Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System to be interpreted as meaning that they prohibit a Member State from imposing on the domestic customer a payment stop and the payment of a surety equal to the outstanding fee for work rendered if the service provider established in another Member State on whom a fine is to be imposed has no legal remedy against the imposition of a surety on the service provider established in another Member State in proceedings for the imposition of a surety and if the domestic customer’s appeal against that decision has no suspensory effect? b. Are Article 56 TFEU and Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System to be interpreted as meaning that they prohibit a Member State from imposing on the domestic customer a payment stop and the payment of a surety equal to the outstanding fee for work rendered solely because the service provider is established in another Member State? c. Are Article 56 TFEU and Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System to be interpreted as meaning that they prohibit a Member State from imposing on the domestic customer a payment stop and the payment of a surety equal to the outstanding fee for work rendered even though the fee is not yet due and the amount of the final fee has not yet been determined on account of counter claims and retention rights?
2.

If it is presumed that the Danish tax rules do not contain a difference of treatment as dealt with in the Philips case, does a prohibition of setting off similar to that described — in a case in which the loss in the non-resident company’s permanent establishment is also subject to the host country’s power of taxation — in itself constitute a restriction of the right of freedom of establishment under Article 49 TFEU, which has to be justified by reference to overriding reasons of the public interest?
EN Official Journal of the European Union C 112/22

Request for a preliminary ruling from the Cour de cassation (France) lodged on 25 January 2017 — Lubrizol France SAS v Caisse nationale du Régime social des indépendants (RSI) participations extérieures

(Case C-39/17)

(2017/C 112/31)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Lubrizol France SAS

Defendant: Caisse nationale du Régime social des indépendants (RSI) participations extérieures

Question referred

Is it contrary to Articles 28 and 30 of the Treaty on the Functioning of the European Union for the value of goods transferred from France to another Member State of the European Union by or on behalf of an entity subject to the social solidarity contribution payable by companies and to the contribution additional to the latter or on that account, for the purposes of its business, to be taken into account for determining the overall turnover that constitutes the basis of assessment to those contributions?
—

declare that the Republic of Bulgaria has failed to fulfil its obligations concerning the establishment of a single point of contact for the exchange of electronic certificates for access to biometric data in identity documents in accordance with Commission Decision С(2009) 7476 of 5 October 2009 amending Commission Decision C(2008) 8657 laying down a certificate policy as required in the technical specifications on the standards for security features and biometrics in passports and travel documents issued by Member States and Commission Decision С(2011) 5478 of 4 August 2011 amending Commission Decision C(2002) 3069 laying down the technical specifications for the uniform format for residence permits for third-country nationals;
1.

Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
EN Official Journal of the European Union C 151/25

Appeal brought on 17 March 2017 by the European Union, represented by the Court of Justice of the European Union against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 10 January 2017 in Case T-577/14, Gascogne Sack Deutschland and Gascogne v European Union

(Case C-138/17 P)

(2017/C 151/32)

Language of the case: French

Parties

Appellant: European Union, represented by the Court of Justice of the European Union (represented by: J. Inghelram and Á.M. Almendros Manzano, acting as agents)

Other parties to the proceedings: Gascogne Sack Deutschland GmbH, Gascogne, European Commission

Form of order sought

— set aside paragraph 1 of the operative part of the contested judgment;

— dismiss as unfounded Gascogne Sack Deutschland and Gascogne’s claim, made at first instance, seeking a sum of EUR 187 571 for losses allegedly suffered as a result of making additional bank guarantee payments beyond a reasonable period;

— order Gascogne Sack Deutschland and Gascogne to pay the costs.

Pleas in law and main arguments

In support of its appeal, the appellant relies on three grounds.

The first ground of appeal alleges an error of law in the interpretation of the concept of ‘causal link’, since the General Court found that the failure to give judgment within a reasonable period was the determining cause of the alleged material damage consisting in the payment of bank guarantee costs, although, according to settled case-law, an undertaking’s own choice not to pay a fine during the proceedings before the judicature of the European Union is the determining cause of the payment of such costs.

The second ground of appeal alleges an error of law in the interpretation of the concept of harm, since the General Court refused to apply to the alleged material damage linked to the payment of bank guarantee costs the same condition as it had set out in respect of the alleged material damage linked to the payment of interest on the amount of the fine, namely that the applicants at first instance had to demonstrate that the financial burden linked to that latter payment was greater than the advantage that they drew from the failure to pay the fine.

The third ground of appeal alleges an error in law in determining the period during which the alleged material damage occurred as well as a failure to state reasons, since the General Court considered, without explaining the reason, that the period during which the alleged material damage consisting in the payment of the bank guarantee costs occurred could be different to the period in which it had placed the unlawful conduct which allegedly caused that harm.
EN Official Journal of the European Union C 161/16

Appeal brought on 5 April 2017 by the European Union, represented by the Court of Justice of the European Union, against the judgment of the General Court (Third Chamber, extended composition) delivered on 17 February 2017 in Case T-40/15, ASPLA and Armando Álvarez v European Union

(Case C-174/17 P)

(2017/C 161/21)

Language of the case: Spanish

Parties

Appellant: European Union, represented by the Court of Justice of the European Union (represented by: J. Inghelram, Á.M. Almendros Manzano and P. Giusta, acting as Agents)

Other parties to the proceedings: Plásticos Españoles, S.A. (ASPLA), Armando Álvarez S.A. and European Commission

Form of order sought

The appellant claims that the Court of Justice should:

— set aside point 1 of the operative part of the judgment under appeal;

— dismiss as unfounded the claim brought by ASPLA and Armando Álvarez at first instance seeking payment of an amount of EUR 3 495 038,66 as compensation for the damage they claim to have suffered as a result of the breach of the obligation to adjudicate within a reasonable time;

— order ASPLA and Armando Álvarez to pay the costs.

Pleas in law and main arguments

1. The first ground of appeal alleges an error of law in the interpretation of the concept of causal relationship, in that the General Court held that the breach of the obligation to adjudicate within a reasonable time was the determining cause of the alleged material damage, consisting of the payment of the bank guarantee charges, whereas, in accordance with settled case-law, the determining cause of the payment of those charges is the choice made by an undertaking itself not to pay the fine during the proceedings before the EU judicature.
EN Official Journal of the European Union C 151/21

Reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom) made on 8 March 2017 — Teva UK Ltd, Accord Healthcare Ltd, Lupin Ltd, Lupin (Europe) Ltd, Generics (UK) trading as ‘Mylan’ v Gilead Sciences Inc.

(Case C-121/17)

(2017/C 151/28)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: Teva UK Ltd, Accord Healthcare Ltd, Lupin Ltd, Lupin (Europe) Ltd, Generics (UK) trading as ‘Mylan’

Defendant: Gilead Sciences Inc.

Question referred

What are the criteria for deciding whether ‘the product is protected by a basic patent in force’ in Article 3(a) of Regulation No. 469/2009 (1)?

(1) Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (OJ 2009, L 152, p. 1).
2.

In so far as national law is applicable or the court is to exercise its discretion: is compensation under Article 7 of the regulation (1) intended to redress only the inconvenience and loss of time suffered by passengers as a result of the cancellation, or is it also intended to address material damage?
EN Official Journal of the European Union C 168/22

Request for a preliminary ruling from the Curtea de Apel Pitești (Romania) lodged on 27 February 2017 — SC Cali Esprou SRL v Administrația Fondului pentru Mediu

(Case C-104/17)

(2017/C 168/29)

Language of the case: Romanian

Referring court

Curtea de Apel Pitești

Parties to the main proceedings

Appellant: SC Cali Esprou SRL

Respondent: Administrația Fondului pentru Mediu

Question referred

Can Article 15 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (1) be interpreted as precluding the adoption, in a Member State of the European Union, of legislation that imposes a contribution payable by the economic operator which places packaged goods and packaging on the market, without in any way altering the goods or packaging, and sells them in the same form to an economic operator which, in turn, sells them on to the final consumer, the amount of the contribution being fixed per kilogram (kg), on the basis of the difference between, on the one hand, the quantities of packaging waste corresponding to the minimum targets for recovery or incineration in waste incineration plants with energy recovery and waste recycling facilities, and, on the other, the quantities of packaging waste actually recovered or incinerated in waste incineration plants with energy recovery and waste recycling facilities?

(1) European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (OJ 1994 L 365, p. 10).
4.

If the reply to question 2 is in the affirmative, is it to be regarded as incompatible with Article 53(3)(d) of the Regulation for the 20 % supplement to the pension for total permanent incapacity to perform the normal occupation also to be suspended in respect of that part which exceeds the amount of the pension from the other Member State?
2.

What is the proper interpretation of paragraph 31 of Case C-93/98, Midland Bank, and specifically the statement that overhead costs ‘are part of the taxable person’s general costs and are, as such, components of the price of an undertaking’s products’? In particular: a) Should this passage be interpreted to mean that a Member State must always attribute some input tax to every supply in any special method adopted under Article 173(2)(c) of the Directive (1)? b) Is this the case even if the factual circumstances are that the overhead costs are not incorporated in the price of taxable supplies made by the undertaking?
EN Official Journal of the European Union C 213/18

Request for a preliminary ruling from the Tribunale Amministrativo Regionale Calabria (Italy) lodged on 22 March 2017 — Lloyd’s of London v Agenzia Regionale per la Protezione dell’Ambiente della Calabria

(Case C-144/17)

(2017/C 213/23)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale Calabria

Parties to the main proceedings

Applicant: Lloyd’s of London

Defendant: Agenzia Regionale per la Protezione dell’Ambiente della Calabria

Question referred

‘Do the principles laid down by EU competition rules, as set out in the Treaty on the Functioning of the European Union (TFEU), and the principles deriving therefrom, such as the independence and confidentiality of tenders, preclude national legislation, as interpreted by case-law, which allows the simultaneous participation, in the same tendering procedure launched by a contracting authority, of several syndicates, members of Lloyd’s of London, whose tenders are underwritten by a single person, namely the General Representative for the Member State concerned?’
2.

Must Regulation No 575/2013, viewed in terms of the rules on disclosure of information on the commercial activity of banks, and more specifically Articles 446 and 432(2) in Part Eight thereof, be interpreted as meaning that the latter provisions preclude legislation of a Member State which compels a bank that is, or was, under the dominant influence of a public-law entity, to disclose information on contracts provided for consultancy and legal services and services of an intellectual nature, and more specifically information concerning the type of transaction concluded, the contractual partner (in the case of a legal person: the corporate or business name, registered office and business address), the value of the contract, the amount of the individual payments for the abovementioned services, the date on which the contract was concluded, the duration of the business relationship and similar information contained in the annexes to the contract — all information that came into existence during the period of dominant influence — without providing for any exception to that requirement, and with no possibility of balancing the public interest in accessing the data against the bank’s interest in safeguarding its business secrets, in circumstances in which there are no cross-border elements?