III.1. Court of Justice of the European Union
Judgement of the Court, of 18 May 2017, Case C-617/15
Reference for a preliminary ruling. Intellectual property. Regulation (EC) No 207/2009. EU trade mark. Article 97(1). International jurisdiction. Action for infringement brought against an undertaking with its seat in a third country. Second-tier subsidiary with its seat in the Member State of the court seised. Definition of ‘establishment’.
“Article 97(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as meaning that a legally distinct second-tier subsidiary, with its seat in a Member State, of a parent body that has no seat in the European Union is an ‘establishment’, within the meaning of that provision, of that parent body if the subsidiary is a centre of operations which, in the Member State where it is located, has a certain real and stable presence from which commercial activity is pursued, and has the appearance of permanency to the outside world, such as an extension of the parent body.”
Judgement of the Court, of 4 May 2017, Case C-387/14
Reference for a preliminary ruling. Public procurement. Directive 2004/18/EC. Principles of equal treatment, non-discrimination and transparency. Technical and/or professional abilities of economic operators. Article 48(3). Possibility to rely on the capacities of other entities. Article 51. Possibility to supplement the tender. Article 45(2)(g). Exclusion from participation in a public contract for serious misconduct.
“Article 51 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 concerning the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in conjunction with Article 2 thereof, must be interpreted as precluding an economic operator from submitting to the contracting authority, in order to prove that it satisfies the conditions for participating in a public tender procedure, documents which were not included in its initial bid, such as a contract performed by another entity and the undertaking of the latter to place at the disposal of that operator the capacities and resources necessary for the performance of the contract concerned after the expiry of the time limit laid down for submitting tenders for a public contract.
Article 44 of Directive 2004/18, in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators in Article 2 of that directive, must be interpreted as meaning that it does not allow an economic operator to rely on the capacities of another entity, within the meaning of Article 48(3) of that directive, by combining the knowledge and experience of two entities which, individually, do not have the capacities required for the performance of a particular contract, where the contracting authority considers that the contract concerned cannot be divided, in that it must be performed by a single operator, and that such exclusion of the possibility to rely on the experience of several economic operators is related and proportionate to the subject matter of the contract which must be performed by a single operator.
Article 44 of Directive 2004/18, in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators in Article 2 of that directive, must be interpreted as meaning that it does not allow an economic operator, which has individually participated in an award procedure for a public contract, to rely on the experience of a group of undertakings of which it was a member, in connection with another public contract, if it has not actually and directly participated in the performance of the latter.
Article 45(2)(g) of Directive 2004/18, which allows the exclusion of an economic operator from participation in a public contract, in particular if it is guilty of ‘serious misrepresentation’ for making false declarations when submitting the information requested by the contracting authority, must be interpreted as meaning that it may be applied where the operator concerned is guilty of a certain degree of negligence, that is to say negligence of a nature which may have a decisive effect on decisions concerning exclusion, selection or award of a public contract, irrespective of whether there is a finding of wilful misconduct on the part of that operator.
Article 44 of Directive 2004/18, in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators in Article 2 of that directive, must be interpreted as meaning that it allows an economic operator to rely on experience derived from two or more contracts treated as a single contract, unless the contracting authority has excluded such a possibility pursuant to requirements which are related and proportionate to the subject matter and purpose of the public contract concerned.
Judgement of the Court of May 18, Case nº C‑624/15:
Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Article 314. Margin scheme. Conditions under which it is applicable. Refusal by the national tax authorities to grant a taxable person the right to apply the margin scheme. References on the invoices relating both to the application of the margin scheme by the supplier and to exemption from VAT. Margin scheme not applied by the supplier to the supply. Indications giving grounds for suspecting an infringement or fraud in the supply.
“Article 314 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted as precluding the competent authorities of a Member State from denying a taxable person the right to apply the margin scheme where he received an invoice that includes references relating both to the margin scheme and to exemption from value added tax (VAT), even if it is apparent from a subsequent check carried out by those authorities that the taxable dealer supplying the second-hand goods had not actually applied that scheme to the supply of those goods, unless it is established by the competent authorities that the taxable person did not act in good faith or did not take every reasonable measure in his power to satisfy himself that the transaction carried out by him does not result in his participation in tax evasion — a matter which it is for the referring court to determine.”
Judgement of the Court of May 17, Case nº C-68/15:
Reference for a preliminary ruling. Freedom of establishment. Parent-Subsidiary Directive. Tax legislation. Tax on company profits. Distribution of dividends. Withholding tax. Double taxation. ‘Fairness tax’.
“Freedom of establishment must be interpreted as not precluding tax legislation of a Member State, such as that at issue in the main proceedings, under which both a non-resident company conducting an economic activity in that Member State through a permanent establishment and a resident company, including the resident subsidiary of a non-resident company, are subject to a tax such as the ‘fairness tax’ when they distribute dividends which, as a result of the use of certain tax advantages provided for by the national tax system, are not included in their final taxable profits, provided that the method of determining the taxable amount of that tax does not in fact lead to that non-resident company being treated in a less advantageous manner than a resident company, which is for the referring court to ascertain.
Article 5 of Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States must be interpreted as not precluding tax legislation of a Member State, such as that at issue in the main proceedings, providing for a tax such as the ‘fairness tax’, to which non-resident companies conducting an economic activity in that Member State through a permanent establishment and resident companies, including the resident subsidiary of a non-resident company, are subject when they distribute dividends which, as a result of the use of certain tax advantages provided for by the national tax system, are not included in their final taxable profits.
Article 4(1)(a) of Directive 2011/96, read in conjunction with Article 4(3) thereof, must be interpreted as precluding national tax legislation, such as that at issue in the main proceedings, in so far as that legislation, in a situation where profits received by a parent company from its subsidiary are distributed by the parent company after the year in which they were received, has the consequence of subjecting those profits to taxation exceeding the 5% ceiling provided for in that provision.“
III.2. Constitutional Court
Judgment of the Constitutional Court no. 222/2017 of May 3, Case 260/16:
Establishes that the provision in article 12.º, no. 3 and 5 of the Annex to the Decree-Law no. 269/98, of September 1 is unconstitutional, as doesn’t comply with the article 20 of the Constitution.
Judgment of the Constitutional Court no. 211/2017 of May 2, Case 285/15:
Establishes that the provision in article 44.º, no. 2 of the Code of Personal Income Tax is unconstitutional, as doesn’t comply with the article 103.º, no. 1 and article 13.º of the Constitution.
III.3. Courts of Justice
Judgment of Lisbon’s Court of Appeal of 4 May 2017, Case No. 2153/13.9TYLSB.L1-8: Winding-up and liquidation of commercial companies. Shareholders liability.
Judgment of Évora’ Court of Appeal of 11 May 2017, Case No. 2372/16.6T8STB-C.E1: Insolvency. Waiver of debtor hearing. Principle of the contradictory.
III.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court of May 10, Case nº 0699/16: Judicial review. The expiry of the right to assess. The correction of the taxable profit.
Judgment of the Supreme Administrative Court of May 10, Case n.º 01159/14: Request. Informal review. Indemnity interest.
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