Court of Justice of the European Union – Judgment in Case: Stanleyparma & Stanleybet Malta

Europe
1. Judgment in Case: Stanleyparma & Stanleybet Malta

In this preliminary reference from the Commissione tributaria provinciale di Parma, the referring Court asks, among other things, whether the case-law of the Court of Justice on gambling and betting services, as well as the principles of equal treatment and non-discrimination under EU law, should be interpreted as precluding national legislation which makes national intermediaries transmitting gambling data on behalf of bookmakers established in a different EU Member State, and particularly those sharing the characteristics of the company Stanleybet Malta Ltd, and possibly those bookmakers jointly with their national intermediaries, liable to the single tax on betting and pools.

2.Hearing in Case C-18/19 Stadt Frankfurt am Main

The Bundesgerichtshof asks whether the Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals precludes national provisions under which custody awaiting deportation may be enforced in an ordinary custodial institution if the foreign national poses a significant threat to the life and limb of others or to significant internal security interests, in which case the detainee awaiting deportation is accommodated separately from prisoners serving criminal sentences.

3.Hearing in Case : Secretary of State for Home Department

The Upper Tribunal (Immigration and Asylum Chamber) London asks whether ‘protection of the country of nationality’ within the meaning of of the Qualification Directive is to be understood as state protection?

Furthermore the Upper Tribunal asks whether in deciding the issue of whether there is a well-founded fear of being persecuted within the meaning the QD and the issue of whether there is protection available against such persecution is the ‘protection test’ or ‘protection inquiry’ to be applied to both issues and, if so, whether it is governed by the same criteria in each case.

4.Opinion in Case : Transportes Aéreos Portugueses

The referring Tribunal Judicial da Comarca de Lisboa asks whether the fact that a passenger, in the course of a flight, bites other passengers and assaults crew members who attempt to calm him to such an extent as to justify, according to the flight commander, a diversion to the nearest airport to disembark that passenger and unload his luggage, which results in the delayed arrival of the flight at its destination, should fall within the concept of ‘extraordinary circumstances’.

Additionally the Tribunal asks whether an ‘extraordinary circumstance’ which occurs on an outward flight immediately preceding the return flight made by the same aircraft, relevant to exempt the air carrier from liability for the delay in the take-off of that latter flight onto which the complainant passenger (the applicant in this case) has boarded. An opinion will be delivered in this case.

5.Judgment in Case :  Constantin Film Produktion v EUIPO

The appellant, in the current case, claims that the ECJ should set aside the judgment T-69/17 of the General Court. In support of its appeal, the appellant submits three main arguments.

Firstly, the General Court erred in assuming that the sign applied for was marked by an inherent vulgarity, thereby overlooking the fact that the multi-word sign “Fack Ju Göhte” is an original and distinctive artistic term which, on account of its misspelling, appears humorous and harmless. More specifically, the appellant submits that the General Court examined the sign “Fuck you, Goethe”, instead of the specific sign applied for, namely “Fack Ju Göhte”.

Secondly, concerning the sign ‘DIE WANDERHURE’ the General Court arbitrarily treated substantially similar situations in different ways.

The third argument that the appellant submits is that by examining the sign ‘Fuck you, Goethe’ instead of ‘Fack Ju Göhte’ and by not applying the findings of the WANDERHURE decision, the General Court took a decision which was unforeseeable and not verifiable.

6.Judgment in Case : Commission v Greece

The Hellenic Republic is obliged to take the necessary measures to comply with the judgment of the Court in Case C-149/14. However, the Hellenic Republic failed to take all the necessary measures to comply with the operative part of that judgment. In particular, the Hellenic Republic failed to undertake a programme of work in relation to vulnerable areas characterised by the presence of bodies of surface water or groundwater which are affected by pollution caused by nitrates from agricultural sources.

The Commission decided to bring an action before the Court for Greece’s failure to comply with the judgment.

7.Judgment in Cases :Vodafone Magyarország & Tesco-Global Áruházak

In these proceedings the Court is concerned with questions relating to tax law and the rules on State aid which at the same time have particular importance for the turnover-based digital services tax currently being proposed by the European Commission.  The question thus also arises in this case whether the taxation of a company’s revenue according to its turnover constitutes a turnover tax or whether such a tax is a direct income tax.

In addition, the Court also considers the question of indirect discrimination arising from a tax regime, where in this case the discrimination can be inferred solely from its progressive rate. Lastly, the Court addresses the question whether progressive taxation of economically stronger undertakings also constitutes unjustified aid in favour of other undertakings.

The Court must therefore rule on the compatibility with EU law of a progressive tax rate and a basic allowance, which has developed historically in many Member States, is considered necessary from the point of view of the welfare state and is, therefore, also applied to taxation of income in the Member States. Furthermore, a progressive tax rate and a basic allowance also form the basis for the digital services taxes which are planned EU-wide and have already been introduced in various Member States.

8.Judgment in Cases : Google Ireland

The applicant is a capital company registered in Ireland under the name ‘Google Ireland Limited’ (‘Google’). Its registered office and head office are in Dublin. In 2016 it carried on activities that were subject to the tax on advertisements. However, Google has thus far failed to satisfy its obligation to register on commencement of a taxable activity in accordance with Article 7/B(1) of the Hungarian Law on the taxation of advertisements.

In a decision dated 16 January 2017, the Hungarian Tax Authority imposed on Google an initial fine of HUF 10 million (currently equivalent to approximately EUR 30 600) for failure to comply with the obligation to register for the purposes of the tax on advertisements, followed by a daily fine for failure to comply which tripled the amount of the earlier fine, bringing the total amount of the fine to HUF 1 billion (currently equivalent to approximately EUR 3.06 million).

The Hungarian authorities hold that By deliberately disregarding its tax obligations, Google obtained a competitive advantage over persons established in Hungary who publish advertisements and comply with their tax obligations under the legislation. The fact that Google has been in breach of its obligations to pay the tax in Hungary since 1 January 2015 is such a serious breach that it is sufficient justification for applying a large fine, which encourages compliance with tax obligations.

Google has brought an action against the decisions of the Tax Authority, requesting that the decisions be annulled, primarily on the basis of the amount of the fine. The fine is much (as much as 2 000 times) higher than for domestic undertakings which are not subject to this specific obligation to register, but only a general obligation.

In addition, domestic undertakings are registered automatically on being entered in the Companies Register, with the result that the penalty applies only to foreign persons. Furthermore, Google believes that their right to an effective remedy is also infringed given that the decisions relating to the fine were final and enforceable from the moment when notice of them was served, that there is limited scope to submit evidence, and that foreign persons have extraordinarily little time in which to prepare properly for the proceedings and to exercise their right.

9.Judgment in Cases: (European Arrest Warrant)

The requested person subject to the European arrest warrant (‘EAW’) in the present case is a rapper and composer. He was sentenced in Spain for several offences committed in 2012 and 2013. ‘Glorification of terrorism and humiliation of the victims of terrorism’ was one of those offences. The law applicable to that offence at the time of its commission provided that it was punishable by a custodial sentence of a maximum of 2 years.

The requested person left Spain for Belgium. The competent Spanish judicial authority issued an EAW with a view to executing the custodial sentence. The EAW indicated that the offence of glorification of terrorism and humiliation of the victims of terrorism fell under the category ‘terrorism’. It also indicated that the length of the maximum custodial sentence for the offence of glorification of terrorism and humiliation of the victims of terrorism was 3 years, following an amendment to the Spanish Criminal Code in 2015.

Article 2(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2) states that the offences listed therein, including that of ‘terrorism’, shall not give rise to verification of double criminality, if they are punishable by a custodial sentence of a maximum period of at least 3 years.

But what is the appropriate reference point for assessing whether that requirement is fulfilled? Is it the maximum custodial sentence applicable to the case at hand, which is normally governed by the law that applied when the offence was committed? Or is it the maximum sentence provided for by the national law in force at the time of issuing the EAW?

10.Judgment in Cases: Gómez del Moral Guasch

Nowadays real property is rarely acquired without a loan. Paying the monthly instalments on a mortgage loan has been normal practice since the dawn of time. In order to take out a loan, the average consumer generally has various sources of information, such as the brochures or practical guides issued by the banks, and also by consumer protection associations, which are intended to inform potential purchasers about various matters such as maximum indebtedness, the fixed or variable interest rates and the reference indices.

Frequently, owing to the technical nature of the information relating to mortgage loans, the average consumer is not in a position to understand certain concepts, such as ‘interest rate’ (fixed or variable), ‘reference index’ or ‘annual percentage rate of charge’ (APRC), and, in particular, the differences between those concepts. That also applies to the functioning or the actual calculation not only of the variable interest rates but also of the official reference indices of mortgage loans and of the APRC on the basis of which those interest rates are calculated. In that context, the level of information required of the seller or supplier is of crucial importance if the average consumer is to understand the real cost of his borrowing.

The present reference for a preliminary ruling, which was made to the Court by the Juzgado de Primera Instancia No 38 de Barcelona (Court of First Instance No 38, Barcelona, Spain), concerns the interpretation of Directive 93/13/EEC.

The request for a preliminary ruling was made in the context of a dispute between Mr Marc Gómez del Moral Guasch and Bankia SA, a banking institution, concerning what is alleged to be the unfair nature of a term in a mortgage loan agreement entered into by those two parties, under which the variable interest rate of the loan is subject to one of the official mortgage loan reference indices (IRPH) (‘the term at issue’), namely the IRPH Cajas.

12.Opinion in the case: Commission v Hungary

In this infringement procedure, the Commission claims that the Court of Justice should declare that Hungary has failed to fulfil:

  • its obligations arising from Article XVII of the GATS (General Agreement on Trade in Services) by requiring foreign higher education institutions situated outside the EEA to conclude an international agreement as a prerequisite for providing education services, pursuant to Article 76(1)(a) of Law CCIV of 2011, as amended
  • its obligations arising from Article 16 of Directive 2006/123/EC 1 and, in any event, from Articles 49 TFEU and 56 TFEU as well as from Article XVII of the GATS, by requiring foreign higher education institutions to offer higher education in their country of origin, pursuant to Article 76(1)(b) of Law CCIV of 2011, as amended;
  • its obligations arising from Articles 13, 14(3) and 16 of the Charter of Fundamental Rights of the European Union, in relation to the restrictions described above.
 13.Judgment in the case : Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO

Although the procedure for establishing a protected designation of origin which would reserve use of the designation Halloumi for cheese made by Cypriot producers has been ongoing since 2014, it has not yet been concluded by the Commission. In the meantime, Cyprus and other bodies have been attempting to prevent certain undertakings from using the designation Halloumi as a trade mark.

In the present case, the Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi (‘the Foundation’) has secured the designation HALLOUMI as an EU collective mark for cheese. It is now attempting, on the basis of that trade mark, to prevent a Bulgarian undertaking from acquiring a figurative mark containing the word BBQLOUMI for cheese. According to the Foundation, other cases based on the collective mark are pending before the European Union Intellectual Property Office (EUIPO) and the General Court; in a first case, the Court of Justice has already ruled definitively against the Foundation.

The Foundation’s efforts in this case to date have proved unsuccessful because EUIPO and the General Court consider the designation HALLOUMI to have only low distinctive character, as it describes the abovementioned cheese. Therefore, despite a certain similarity, it is unlikely that the relevant public will establish a link with the producers in the Foundation in connection with use of BBQLOUMI.

The Foundation, on the other hand, takes the view that a collective mark necessarily enjoys increased protection, a factor to which the General Court did not give sufficient consideration.

14.Hearing in joint cases : Luxembourg v Commission and  Amazon EU and Amazon.com

Hearing in these cases concerning the European Commission decision which found that Luxembourg granted illegal State Aid by way of a tax ruling granted in 2003.

 

 

 

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