ddrg/super_eurlex huggingface dataset:
Case C‑28/17

NN A/S

v

Skatteministeriet

(Request for a preliminary ruling from the Østre Landsret)

(Reference for a preliminary ruling — Article 49 TFEU — Corporation tax — National tax legislation making the transfer of the losses sustained by a permanent establishment, situated on national territory, of a company established in another Member State, to a resident company belonging to the same group, subject to a condition as to the impossibility of using such losses for the purpose of a foreign tax)

Summary — Judgment of the Court (First Chamber), 4 July 2018

Freedom of movement for persons — Freedom of establishment — Tax legislation — Corporation tax — Deduction of losses — National legislation allowing group taxation of resident companies in a group, including permanent establishments located in the same country — Losses sustained by the permanent establishment, owned by a non-resident subsidiary of a resident parent group — National legislation allowing resident companies in a group to deduct those losses from their overall profits only where such deductions are not permitted in the subsidiary’s state of residence — Lawfulness — Conditions

(Art. 49 TFEU)

Article 49 TFEU must be interpreted as not precluding, in principle, national legislation, such as that at issue in the main proceedings, pursuant to which the resident companies in a group are permitted to deduct, from their group profits, the losses sustained by a resident permanent establishment of a non-resident subsidiary of that group only in the case where the rules applicable in the Member State in which that subsidiary has its registered office do not permit those losses to be deducted from the latter’s profits, when the application of that legislation is combined with that of a convention preventing double taxation allowing, in the latter Member State, the deduction from the income tax payable by the subsidiary of a sum corresponding to the income tax paid, in the Member State on the territory of which that permanent establishment is situated, in respect of the latter’s activity. However, Article 49 TFEU must be interpreted as precluding such legislation in the case where the effect of its application is to deprive that group of any effective possibility of deducting those losses from the group’s overall profits, where it is not possible to set off those losses against that subsidiary’s profits in the Member State on the territory of which that subsidiary is established, these being matters for the referring court to verify.

(see para. 57, operative part)
As Article 218(9) TFEU does not lay down any voting rule for the purpose of adoption by the Council of the categories of decisions which it covers, the applicable voting rule must be determined in each individual case by reference to Article 218(8) TFEU. This helps to ensure that the single procedure envisaged in Article 218(9) TFEU takes account of the specific features of each field of EU activity. In particular, the first case in which the second subparagraph of Article 218(8) TFEU requires the Council to act unanimously concerns the situation where the agreement covers a field for which unanimity is required for the adoption of an EU act, thereby establishing a link between the substantive legal basis of a decision adopted under that article and the voting rule applicable to the decision’s adoption. The link thereby ensured between the substantive legal basis of decisions adopted under the procedure laid down in Article 218(9) TFEU and the applicable voting rule for adopting those decisions helps, moreover, to preserve symmetry between procedures relating to internal activity of the European Union and procedures relating to its external activity, in compliance with the institutional balance established by the framers of the Treaties.

Consequently, a decision by which the Council establishes the position to be adopted on behalf of the European Union in a body set up by an agreement, pursuant to Article 218(9) TFEU, and which concerns exclusively the CFSP must, in principle, be adopted unanimously, in accordance with the second subparagraph of Article 218(8) TFEU. On the other hand, if such a decision comprises several components or pursues a number of objectives, some of which fall within the CFSP, the voting rule applicable for its adoption must be determined in the light of its main or predominant purpose or component. Thus, if the main or predominant purpose or component of the decision falls within a field in respect of which unanimity is not required for the adoption of an EU measure, that decision must, in accordance with the first subparagraph of Article 218(8) TFEU, be adopted by qualified majority.

(see paras 27-30, 38)
Appeal—Grounds—Incorrect assessment of the facts and evidence—Inadmissibility—Review by the Court of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted—Ground of appeal alleging distortion of the clear sense of the evidence—Need to indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which led to that distortion

(Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2))

(see paras 33-35)
Case C‑595/17

Apple Sales International and Others

v

MJA

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

(Reference for a preliminary ruling — Area of freedom, security and justice — Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Article 23 — Jurisdiction clause in a distribution contract — Action for damages by the distributor based on the infringement of Article 102 TFEU by the supplier)

Summary — Judgment of the Court (Third Chamber), 24 October 2018

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Prorogation of jurisdiction — Agreement conferring jurisdiction — Jurisdiction clause in a distribution contract — Action for damages by the distributor based on the infringement of Article 102 TFEU by the supplier — Application of the jurisdiction clause — Lawfulness (Council Regulation No 44/2001, Art. 23) Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Prorogation of jurisdiction — Agreement conferring jurisdiction — Jurisdiction clause in a distribution contract — Action for damages by the distributor based on the infringement of Article 102 TFEU by the supplier — Application of the jurisdiction clause — Conditions — Prior finding of an infringement of competition law by a national or European authority. — Exclusion (Council Regulation No 44/2001, Art. 23)
Case C‑471/17

Kreyenhop & Kluge GmbH & Co. KG

v

Hauptzollamt Hannover

(Request for a preliminary ruling from the Finanzgericht Hamburg)

(Reference for a preliminary ruling — Customs Union and Common Customs Tariff — Tariff and statistical nomenclature — Classification of goods — Fried instant noodles — Tariff subheading 19023010)

Summary — Judgment of the Court (Tenth Chamber), 6 September 2018

Customs union — Common Customs Tariff — Tariff headings — Fried instant noodles — Classification under subheading 19023010 of the combined nomenclature — Criteria — concept of (dried) pasta

(Council Regulation No 2658/87, as amended by Regulation No 927/2012, Annex I)

The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version resulting from Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012, must be interpreted as meaning that subheading 19023010 thereof covers instant noodle dishes, such as those at issue in the main proceedings, which are, in essence, composed of a block of pre-cooked and fried noodles.

In that regard, it should be noted that the term ‘dried’, as used in CN subheading 19023010, is not defined. The term ‘dried’, as used in CN subheading 19023010, is the past participle of the verb ‘to dry’, which means, in particular, ‘make dry’ or ‘become dry’. Therefore, since the manufacture of pasta involves necessarily, first of all, the use of liquid, pasta from which the moisture is extracted in the course of its manufacture in order to bring it to a dry state may, in general, be considered to be dried pasta. In contrast, in that regard the process by which that state has been reached is not decisive. Therefore, since at the end of the production process the noodles have been packaged in a dry state, they should be considered to be ‘dried’ pasta, within the meaning of CN subheading 19023010.

(see paras 38, 40-42, 47, operative part)
Case C‑25/17

Proceedings against Tietosuojavaltuutettu

(Request for a preliminary ruling from the Korkein hallinto-oikeus)

(Reference for a preliminary ruling — Protection of individuals with regard to the processing of personal data — Directive 95/46/EC — Scope of the directive — Article 3 — Data collected and processed by the members of a religious community in the course of their door-to-door preaching — Article 2(c) — Definition of a ‘personal data filing system’ — Article 2(d) — Definition of a ‘controller’ of the processing of personal data — Article 10(1) of the Charter of Fundamental Rights of the European Union)

Summary — Judgment of the Court (Grand Chamber), 10 July 2018

Judicial proceedings — Oral part of the procedure — Reopening — Facts mentioned in the observations submitted by the parties in preliminary reference proceedings or in the Advocate General’s Opinion — Justification for the re-opening of the oral procedure — None (Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 83)

Fundamental rights — Charter of Fundamental Rights of the European Union — Right to freedom of thought, conscience and religion — Concept of religion — Scope (Charter of Fundamental Rights of the European Union, Art. 10(1))

Approximation of laws — Protection of individuals with regard to the processing of personal data — Directive 95/46 — Scope — Processing of personal data in the course of the exercise of activities falling outside the scope of EU law or carried out by a natural person in the exercise of activities which are exclusively personal or domestic — Not included — Applicability to the collection of personal data by members of a religious community in the course of their door-to-door preaching — None (Charter of Fundamental Rights of the European Union, Art. 10(1); European Parliament and Council Directive 9595/46, Art. 3(2))

Approximation of laws — Protection of individuals with regard to the processing of personal data — Directive 95/46 — Scope — Personal data filing system — Concept — Set of personal data collected in in the course of door-to-door preaching and structured in order to facilitate their later use — Included (European Parliament and Council Directive 95/46, Art. 2(c))
Appeal — Formal requirements — Mention of the date on which the judgment of the General Court was notified — Omission — Error not sufficient to render the application inadmissible

(Art. 256 TFEU; Rules of Procedure of the Court of Justice, Art. 168(3))

(see para. 29)
Article 3(1)(g) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin must be interpreted as meaning that the award by a private foundation of scholarships to support research projects or studies abroad falls within the concept of ‘education’, within the meaning of that provision, where there is a sufficiently close link between the assigned financial payments and participation in those research projects or studies which, themselves, fall within that same concept of ‘education’. That is the case, in particular, where such financial payments are linked to the participation of potential candidates in such research projects or studies, and are designed to remove all or some of the potential financial barriers to participation, and where those payments are appropriate to achieve that aim.

First of all, as observed by the Advocate General in points 22 and 23 of her Opinion, the term ‘education’ has the usual meaning it has in everyday language, so as to include acts or the process by which is transmitted or acquired, inter alia, information, knowledge, understanding, attitudes, values, skills, competences, or behaviours.

As observed by the Advocate General in points 32 and 34 of her Opinion, a teleological interpretation of the concept of ‘education’, within the meaning of Article 3(1)(g) of Directive 2000/43, requires, first, that access to education be considered an essential aspect of this concept, since there can be no education without the possibility to access it and that, therefore, the directive’s objective, which is to combat discrimination in education, could not be achieved if discrimination were allowed at the access to education stage.

Secondly, costs related to the participation in a research project or in an educational programme must be considered to be part of the components of access to education and thus included in the concept of ‘education’, in so far as the availability of the financial resources necessary to ensure such participation is likely to determine who is able to access that project or programme.

(see paras 31, 37, 38, 44, operative part 1)
Case C‑462/17

Tänzer & Trasper GmbH

v

Altenweddinger Geflügelhof KG

(Request for a preliminary ruling from the Landgericht Hamburg)

(Reference for a preliminary ruling — Approximation of laws — Regulation (EC) No 110/2008 — Spirit drinks — Definition, description, presentation, labelling and the protection of geographical indications — Category 41 of Annex II — Egg liqueur — Definition — Exhaustive nature of the permissible components)

Summary — Judgment of the Court (Ninth Chamber), 25 October 2018

Approximation of laws — Uniform legislation — Definition, description, presentation, labelling and protection of geographical indications of spirit drinks — Regulation No 110/2008 — Spirit drinks — Egg liqueur — Delimitation — Exhaustive nature of the permissible components

(European Parliament and Council Regulation No 110/2008, as amended by Regulation No 1334/2008, Annex II, category 41)

Category 41 of Annex II to Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89, as amended by Regulation (EC) No 1334/2008 of the European Parliament and of the Council of 16 December 2008, must be interpreted as meaning that, in order to be able to bear the sales denomination ‘egg liqueur’, a spirit drink cannot contain ingredients other than those mentioned in that provision.

The definitions contained in that annex are precisely specific measures on the description and presentation of spirit drinks, referred to in the preceding paragraph. As those definitions are therefore at the heart of the system established by Regulation No 110/2008, and as their accuracy must serve the aim, also set out in the preceding paragraph, of avoiding the misuse of names of spirit drinks, they must be interpreted restrictively, lest the scheme be weakened. In those circumstances, the possibility of adding other ingredients to those listed in those definitions could be permissible only if expressly provided for therein. This is not the case with regard to category 41 of Annex II to Regulation No 110/2008, which does not mention the possibility of adding ingredients other than those listed under category 41(a) of that annex. Apart from those ingredients, only the use of certain flavouring substances and preparations is expressly provided for, in the circumstances set out in category 41(c) of that annex. Milk, however, cannot be classified as a flavouring ‘substance’ or ‘preparation’.

(see paras 23, 24, 30, operative part)
The circumstance that the EU judicature may have committed a breach of the obligation to adjudicate within a reasonable time in cases relating to the lawfulness of a fine imposed by the Commission cannot be the determining cause of the damage suffered by the undertaking which brought the action as a result of paying bank guarantee charges during the period by which that time was exceeded. That would be the case only if it were compulsory to maintain the bank guarantee, so that the undertaking which brought an action against a Commission decision imposing a fine on it, and which chose to provide a bank guarantee in order not to comply immediately with that decision, was not entitled, before the date on which the judgment on that action was delivered, to pay that fine and put an end to the bank guarantee that it had provided.

Like the provision of the bank guarantee, the maintenance of that guarantee is a matter for the discretion of the undertaking concerned in the light of its financial interests. Nothing prevents, as a matter of EU law, that undertaking from terminating, at any time, the bank guarantee that it has provided and paying the fine imposed, where, in view of the evolution of the circumstances in relation to those existing on the date when that guarantee was provided, that undertaking deems that option more advantageous for it. That might be the case, in particular, where the conduct of the proceedings before the EU judicature leads the undertaking in question to take the view that the judgment will be delivered at a date later than that which it had initially envisaged and that, consequently, the cost of the bank guarantee will be higher than the cost that it had initially envisaged when providing that guarantee.

(see paras 28, 29, 31)
Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 24, 49)
Article 3(1) of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, must be interpreted as meaning that the concept of ‘use of vehicles’, set out in that provision, covers a situation in which the passenger of a vehicle parked in a car park, in opening the door of that vehicle, scraped against and damaged the vehicle parked next to it.

It must be recalled, first, that the fact that the vehicle involved in the accident was stationary when the accident occurred does not, in itself, preclude the use of that vehicle at that time from falling within the scope of its function as a means of transport and, therefore, within the scope of the concept of ‘use of vehicles’ within the meaning of Article 3(1) of the First Directive (judgment of 28 November 2017, Rodrigues de Andrade, C‑514/16, EU:C:2017:908, paragraph 39). The opening of doors is usually only done when vehicles are stationary. Next, it is apparent from the case-law cited in paragraphs 34 and 35 of the present judgment that the concept of ‘use of vehicles’, within the meaning of Article 3(1) of the First Directive, covers ‘any’ use of a vehicle that is consistent with its normal function, namely its function as a means of transport. It is important to point out in this regard that the use of vehicles is not limited to the driving of vehicles, but also includes actions which, like the action mentioned in paragraph 36 of the present judgment, are also normally carried out by passengers.

(see paras 38, 44, 45, 48, operative part)
12

According to Article 11(1 quater) of the Legea nr. 571/2003 privind Codul fiscal (Law No 571/2003 establishing the Tax Code (Monitorul Oficial al României, No 927 of 23 December 2003): ‘Taxable persons established in Romania, whose identification for VAT purposes has been revoked in accordance with Article 153(9)(b) to (e) and (h) shall not, for the period in question, enjoy the right to deduct VAT on purchases made, but shall be liable to pay VAT collected, in accordance with the provisions of Title VI, in respect of taxable transactions carried out during that period. As regards purchases of goods and/or services made during the period in which the relevant person has no valid VAT number, which are intended for transactions to be made after the VAT identification date and which give rise to the right to deduct under Title VI, adjustments shall be made in favour of the taxable person, by means of inclusion in the first tax return provided for in Article 156 ter submitted by the taxable person following the identification for VAT purposes or, as the case may be, in a subsequent return, in respect of tax relating to the following: (a) goods stored and services not used at the time of the identification, as certified on the basis of an inventory; (b) tangible fixed assets, including capital assets for which the adjustment period for the deduction has not expired, and tangible fixed assets in the process of implementation, as certified on the basis of inventory, which are owned by the relevant party at the time of identification. In the case of fixed tangible assets other than capital assets, the tax relating to as yet undepreciated values at the time of identification shall be adjusted. Article 149 applies in relation to capital assets; (c) purchases of goods and services to be obtained, that is to say, those for which the tax became chargeable, in accordance with Article 134 bis(2)(a) and (b), before the date of identification and for which the chargeable event of the tax, that is to say, delivery or supply, takes place after that date.’
8

Article 199 undecies B of the code général des impôts (General Tax Code), in the version applicable to the disputes in the main proceedings (‘the CGI’), provides: ‘Taxpayers domiciled in France within the meaning of Article 4B may benefit from a reduction of tax on income from new productive investments in overseas departments, Saint Pierre and Miquelon, Mayotte, New Caledonia, French Polynesia, the Wallis and Futuna Islands and the French Southern and Antarctic Lands, in the context of an undertaking carrying out an agricultural activity or an industrial, commercial or artisanal activity coming within the scope of Article 34. … The provisions of the first paragraph apply to investments made by a company subject to the tax regime set out in Article 8 or an association referred to in Articles 239 quater or 239 quater C, the shares in which are held … by taxpayers domiciled in France within the meaning of Article 4B. In such cases, the tax reduction shall be effected by the partners or members in proportion to their shareholding in the company or association. … The tax reduction referred to in section I shall apply to productive investments made available to an undertaking in the context of a lease …’