ddrg/super_eurlex huggingface dataset:
(Regulation No 4064/89 – Decision ordering the separating of undertakings following a decision declaring a concentration incompatible with the common market)
(European Economic Area – Medicinal products – Regulation (EEC) No 1768/92 – Supplementary protection certificates – Duration – Calculation – Interpretation of Article 13 of the regulation – First authorisation to place the product on the market ‘in the Community’ – Swiss authorisations having immediate effect in Liechtenstein – Certificates the duration of which has been erroneously calculated – Rectification by the national authorities)
(Sixth VAT Directive – Exemptions – Supplies of services and goods directly related to welfare and social security and protection of children and young persons – Bodies recognised as being of a ‘social character’ – Private bodies run for profit – Interpretation of Article 13A(1)(g) and (h))
(State aid – Sixth VAT Directive – Exemption of professional medical services from payment of value added tax – Adjustment of deductions)
4.

Article 3 determines which plans and programmes require an assessment. The relevant provisions are, in particular, Article 3(1) to (5): ‘1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects. 2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC, or (b) … 3. Plans and programmes referred to in paragraph 2 which determine the use of small areas at local level and minor modifications to plans and programmes referred to in paragraph 2 shall require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects. 4. Member States shall determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework for future development consent of projects, are likely to have significant environmental effects. 5. Member States shall determine whether plans or programmes referred to in paragraphs 3 and 4 are likely to have significant environmental effects either through case-by-case examination or by specifying types of plans and programmes or by combining both approaches. For this purpose Member States shall in all cases take into account relevant criteria set out in Annex II, in order to ensure that plans and programmes with likely significant effects on the environment are covered by this Directive. 6. …’
14.

In order to establish whether this taxation is lawful, the Hoge Raad asks whether the situations in the three cases are subject to European Union law: In Case C-578/10: In the light of Article 18 EC (now Article 21 TFEU), does Community law govern a situation in which a Member State levies a tax on the first use on the road network in its territory of a vehicle which is registered in another Member State, has been borrowed from a resident of that other Member State and has been driven by a resident of the first Member State in the territory of that Member State? In Case C-579/10: In the light of Article 18 EC (now Article 21 TFEU), does Community law govern a situation in which a Member State levies a tax on the first use on the road network in its territory of a vehicle which is registered in another Member State, has been borrowed from a resident of that other Member State and has been driven for private purposes by a resident of the first Member State between those two Member States? In Case C-580/10: In the light of Article 18 EC (now Article 21 TFEU), does Community law govern a situation in which a Member State levies a tax on the first use on the road network in its territory of a vehicle which is registered in another Member State, has been borrowed from a resident of that other Member State and has been driven for private purposes in the territory of the first Member State by a person who is a resident of that Member State but a national of the other Member State?
83.

The General Court’s reasoning seems to me open to criticism inasmuch as it assumes that the Court of Justice, in refraining from commenting on the plea of infringement of Article 11 of Directive 65/65, by implication upheld the General Court’s analysis on this aspect. In addition, the General Court focuses its attention on its judgment in Artegodan and Others v Commission, to which it accords the full status of res judicata without taking into account the fact that this judgment, which was appealed, must be read in conjunction with what the Court of Justice held in the judgment that it delivered on that appeal. When a judgment of the General Court has not been appealed to the Court, its operative part together with its supporting grounds must be considered to have become definitive. ( 30 ) Conversely, when such a judgment has been appealed to the Court, the authority of res judicata which it may rely on is limited to the points of fact and law that the Court has expressly upheld. That is why, in order to determine what has been definitively adjudged, the General Court, contrary to what it did do, should have attached importance to the fact that the Court of Justice did not rule in relation to the infringement of Article 11 of Directive 65/65, even though the General Court’s analysis on this point had indeed been challenged before it. As the Commission rightly points out, the fact that an appeal was lodged against the judgment of the General Court and that a judgment on the appeal has been delivered by the Court of Justice cannot be disregarded in determining the scope of res judicata of the judgment delivered at first instance by the General Court, even if, ultimately, the appeal is dismissed in the operative part.
3.

In order to determine which court has jurisdiction to open insolvency proceedings, Article 3(1) and (2) of the Regulation provides: ‘1. The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. 2. Where the centre of a debtor’s main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State. The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.’
16.

Against this background, the Upper Tribunal, Tax and Chancery Chamber, has referred the following questions to the Court for a preliminary ruling: ‘(1) Where a Member State (such as the UK) includes in its tax base the profits and losses of a company incorporated and tax resident in another Member State (such as the Netherlands) to the extent that the profits are attributable to a business carried on by the Netherlands company in the UK through a permanent establishment situated in the UK, is it a restriction on the freedom of a national of a Member State to establish in the UK under Article 49 TFEU (ex Article 43 EC) for the UK to prevent the surrender of the UK losses of a permanent establishment situated in the UK of a non-UK resident company to a UK company by way of group relief where any part of those losses or any amount brought into account in computing them “corresponds to, or is represented in, any amount which, for the purposes of any foreign tax is (in any period) deductible from or otherwise allowable against non-UK profits of the company or any person” i.e. to permit the surrender of UK losses in the case of a permanent establishment situated in the UK only where it is clear that at the time of the claim there can never be any deduction or allowance in any State outside the UK (including another Member State (such as the Netherlands)), and it being insufficient that relief available overseas has not in fact been claimed, and in circumstances where there is no equivalent condition applicable to the surrender of UK losses of a UK resident company? (2) If so, is that restriction capable of being justified (a) solely on the basis of the need to prevent the double use of losses, or (b) solely on the basis of the need to preserve the balanced allocation of taxing powers between Member States, or (c) on the basis of the need to preserve the balanced allocation of taxing powers between Member States in conjunction with the need to prevent the double use of losses? (3) If so, is the restriction proportionate to such justification or justifications? (4) If any restriction on the rights of the Netherlands company is not justified or to the extent that it is not proportionate to any justification, does EU Law require the UK to provide the UK company with a remedy such as the right to claim group relief against its profits?’
61.

The examination of this question must, however, also include the rule contained in Paragraph 13(5) of the ErbStG, which imposes on the heir as a condition for the grant of tax advantages — in so far as the company has its registered office or principal place of business in a country of the European Economic Area — the obligation actually to continue operating the undertaking for at least five years and not to dispose of his shares. That rule further provides that the advantages in question are to be disapplied if the heir does not satisfy those conditions. It is clearly aimed at situations in which the heir exercises his freedom of establishment in order to participate in economic life in the other State on an ongoing basis, since it requires him to continue to operate the undertaking for a not inconsiderable period of time. The prospect of having those advantages retrospectively disapplied is intended to ensure that, in his new capacity as owner of the undertaking following the transfer of title, the heir will bring his conduct permanently into line with the requirements of the national legislature. In offering the heir financial incentives to continue operating the undertaking, the law effectively lures him into the role of business leader. His room for manoeuvre here, if he does not wish to lose the tax advantages available, is greatly restricted, particularly from the point of view of the possibility of disposing of his shareholding or even of deciding to relocate the company outside the European Economic Area. It is precisely in the light of the deliberate influence thus brought to bear on an heir who has taken over from the testator a position in the undertaking of such prominence that he is able to direct the conduct of its business that a restriction on the free movement of capital seems to be nothing more than an unavoidable consequence of a restriction on the freedom of establishment.
17.

At that point, the Supreme Court decided to stay the proceedings and submit the following questions to the Court of Justice for a preliminary ruling: ‘1. In a situation in which, in 2005 and 2006, goods from a non‑member state of the European Union (Ukraine) were placed in a public customs warehouse in the territory of a Member State of the European Union by an importer from that Member State, were subsequently processed in an inward processing suspension procedure in that customs warehouse, and the resulting product was not immediately exported within the meaning of Article 114 of Regulation No 2913/92 but instead was sold in that same warehouse by the processor of the goods to another company from that Member State, which did not release it from the customs warehouse for free circulation, but subsequently returned it to the customs warehousing procedure, is that sale of goods within the same customs warehouse still subject solely to Community customs rules, or has the legal situation been changed by that sale to the extent that the transaction is now subject to the system under the Sixth Council Directive of 17 May 1977 (77/388/EEC), i.e., is it possible, for the purpose of the system of value added tax under the Sixth Directive, to regard a public customs warehouse located in the territory of a Member State as part of the territory of the Community, or the territory of that Member State, in accordance with the definitions provided in Article 3 of the Sixth Directive? 2. In light of the doctrine of abuse of rights developed by the Court of Justice of the European Union and concerning the application of the Sixth Directive (C‑255/02 Halifax and Others), is it possible to treat the above as a situation in which the applicant, by selling goods in a public customs warehouse located in the territory of the Slovak Republic, has already made supply for consideration in the Slovak Republic? 3. If the reply to the first question is in the affirmative, in that the transaction in question is now subject to the system under the Sixth Directive, is that transaction then a chargeable event a. under Article 10(1) and (2) of the Sixth Directive, with the tax becoming chargeable as a result of the delivery of the goods in the customs warehouse located in the territory of the Slovak Republic; or b. on the ground that, after the goods were imported from a third country (Article 10(3) of the Sixth Directive), the customs procedure ended while the goods were held in storage in that customs warehouse upon sale thereof to another person from the Member State? 4. Are the objectives of the Sixth Directive as expressed in the preamble thereof, or the objectives of the GATT (WTO), attained if the sale of goods imported from a third country to a customs warehouse and then processed therein and sold to another person from that Member State in the customs warehouse in the territory of the Member State of the European Community is not subject to value added tax in that Member State?’
55.

Therefore, as pointed out in the written observations of the Commission, the facts to hand are entirely distinguishable from those considered by the Court in A.T., a case concerning exchange of shares. There the effect of the German law concerned was to deprive German resident transferring companies of the option to complete an exchange of shares in a fiscally neutral manner. This was so because under the German legislation in issue, the transferring company was only entitled to continue to use the book value of the shares transferred to them if the acquiring company in another Member State also used the book value for the share holding received. In A.T., the acquiring (French) company had valued the holding not at its book value, but at its market value. On these facts, fiscal neutrality in Germany was clearly subject to ‘additional conditions’ ( 20 ) appertaining to reciprocity that were not envisaged by Directive 90/434. For the reasons that I have given above, the accounting requirements imposed by Italian and EU law are in no way analogous to the German legislation impugned in A.T.
3.

Article 5 of Directive 2005/36 provides as follows: ‘Principle of the free provision of services 1. Without prejudice to specific provisions of Community law, as well as to Articles 6 and 7 of this Directive, Member States shall not restrict, for any reason relating to professional qualifications, the free provision of services in another Member State: (a) if the service provider is legally established in a Member State for the purpose of pursuing the same profession there (hereinafter referred to as the Member State of establishment), and (b) where the service provider moves, if he has pursued that profession in the Member State of establishment for at least two years during the 10 years preceding the provision of services when the profession is not regulated in that Member State. The condition requiring two years’ pursuit shall not apply when either the profession or the education and training leading to the profession is regulated. 2. The provisions of this title shall only apply where the service provider moves to the territory of the host Member State to pursue, on a temporary and occasional basis, the profession referred to in paragraph 1. The temporary and occasional nature of the provision of services shall be assessed case by case, in particular in relation to its duration, its frequency, its regularity and its continuity. 3. Where a service provider moves, he shall be subject to professional rules of a professional, statutory or administrative nature which are directly linked to professional qualifications, such as the definition of the profession, the use of titles and serious professional malpractice which is directly and specifically linked to consumer protection and safety, as well as disciplinary provisions which are applicable in the host Member State to professionals who pursue the same profession in that Member State.’
24.

The questions referred to the Court are worded as follows: ‘(1) Is Article 19 in conjunction with Article 18 of Regulation No 343/2003 to be interpreted as meaning that, following the agreement of a Member State in accordance with those provisions, that Member State is the State responsible for examining the asylum application within the meaning of the introductory part of Article 16(1) of Regulation No 343/2003, or does European law oblige the national review authority[,] where, in the course of an appeal or review procedure in accordance with Article 19(2) of Regulation No 343/2003, irrespective of that agreement, it comes to the view that another State is the Member State responsible pursuant to Chapter III of Regulation No 343/2003 (even where that State has not been requested to take charge or has not given its agreement), to determine that the other Member State is responsible for the purposes of its appeal or review procedure? In that regard, does every asylum seeker have an individual right to have his application for asylum examined by a particular Member State responsible in accordance with those responsibility criteria? (2) Is Article 10(1) of Regulation No 343/2003 to be interpreted as meaning that the Member State in which a first irregular entry takes place (“first Member State”) must accept its responsibility for examining the asylum application of a third-country national if the following situation materialises: A third-country national travels from a third country, entering the first Member State irregularly. He does not claim asylum there. He then departs for a third country. After less than three months, he travels from a third country to another EU Member State (“second Member State”), which he enters irregularly. From that second Member State, he continues immediately and directly to a third Member State, where he lodges his first asylum claim. At that point, less than 12 months have elapsed since his irregular entry into the first Member State. (3) Irrespective of the answer to Question 2, if the “first Member State” referred to therein is a Member State whose asylum system displays systemic deficiencies equivalent to those described in the judgment of the European Court of Human Rights of 21 January 2011, M.S.S., 30.696/09, is it necessary to come to a different assessment of the Member State with primary responsibility within the meaning of Regulation No 343/2003, notwithstanding the judgment in [N.S. and Others]? In particular, can it be assumed that a stay in such a Member State cannot from the outset constitute an event establishing responsibility within the meaning of Article 10 of Regulation No 343/2003?’
7.

Article 6 of the regulation provides as follows: ‘1. Within one year of the date of the entry into force of this Regulation transport undertakings shall lodge with the competent authorities of the Member States the applications referred to in Article 4. Transport undertakings may lodge applications after the expiry of the aforementioned period if they find that the provisions of Article 4(1) are satisfied. 2. Decisions to maintain a public service obligation or part thereof, or to terminate it at the end of a specified period, shall provide for compensation to be granted in respect of the financial burdens resulting therefrom; the amount of such compensation shall be determined in accordance with the common procedures laid down in Articles 10 to 13. 3. The competent authorities of the Member States shall take decisions within one year of the date on which the application is lodged as regards obligations to operate or to carry, and within six months as regards tariff obligations. The right to compensation shall arise on the date of the decision by the competent authorities but in any event not before 1 January 1971. 4. However, if the competent authorities of the Member States consider it necessary by reason of the number and importance of the applications lodged by each undertaking, they may extend the period prescribed in the first subparagraph of paragraph 3 until 1 January 1972 at the latest. In such case, the right to compensation shall arise on that date. Where they intend to avail themselves of this power, the competent authorities of the Member States shall so inform the undertakings concerned within six months following the lodging of applications. Should any Member State meet with special difficulties, the Council may, at the request of that State and on a proposal from the Commission, authorise the State concerned to extend until 1 January 1973 the time limit indicated in the first subparagraph of this paragraph. 5. If the competent authorities have not reached a decision within the time limit laid down, the obligation in respect of which the application under Article 4(1) for termination was made shall stand terminated. 6. The Council shall, on the basis of a report submitted by the Commission before 31 December 1972, study the situation in each Member State with regard to the implementation of this Regulation.’