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Archive for: Treaty on European Union

Tax law, case III SA/Wa 396/10

April 18th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 8 April 2010, case file III SA/Wa 396/10, ruled that there is no legislative impediment to the existence of a mixed system for the storage of invoices, which consists of sending an invoice in paper and storage of its electronic copies with the option to print at the request of a legitimate authority. Such an interpretation was corroborated by teleological considerations, environmental and economic. According to the VAC the different findings would lead to a breach of the principle of proportionality, as set out in article 5(3) of the Treaty on European Union.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C 83 of 30 March 2010. PDF files.

Patent Attorneys, case C-564/07

June 13th, 2009, Tomasz Rychlicki

The Court of Justice of the EU (Third Chamber) in its judgment of 11 June 2009 Case C-564/07, Commission of the European Communities v. Republic of Austria, declared that, by obliging patent lawyers lawfully established in another Member State who wish temporarily to perform services in Austria to appoint an approved agent resident in Austria, the Republic of Austria has failed to fulfil its obligations under Article 49 EC.

Patent attorneys, case C-478/01

February 21st, 2006, Tomasz Rychlicki

The Court of Justice of the EU (Fourth Chamber) in its judgment of 6 March 2003 Case C-478/01, Commission of the European Communities v. Grand Duchy of Luxembourg, declared that, having regard to the requirement that patent agents, when supplying services, should elect domicile with an approved agent, and having regard to the fact that the Luxembourg Government has not provided information concerning the precise conditions for the application of Article 85(2) of the Law of 20 July 1992 amending the rules on patents and Articles 19 and 20 of the Law of 28 December 1998 governing access to occupations in craft trades, business and industry, and to certain liberal professions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC and Article 10 EC.

Patent attorneys, case C-76/90

February 13th, 2006, Tomasz Rychlicki

The Court of Justice of the EU (Sixth Chamber) in its judgment of 25 July 1991 Case C-76/90, Manfred Säger v Dennemeyer & Co. Ltd., ruled that the provisions Article 59 of the Treaty requires not only the elimination of all discrimination against a person providing services on the grounds of his nationality, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services. In particular, a Member State may not make the provision of services in its territory subject to compliance with all the conditions required for establishment and thereby deprive of all practical effectiveness the provisions of the Treaty whose object is, precisely, to guarantee the freedom to provide services. Such a restriction is all the less permissible where, unlike the situation governed by the third paragraph of Article 60 of the Treaty, the service is supplied without its being necessary for the person providing it to visit the territory of the Member State where it is provided.

Having regard to the particular characteristics of the provisions of services in certain sectors of activity, specific requirements imposed on the provider, which result from the application of rules governing those types of activities, cannot be regarded as incompatible with the Treaty. However, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by provisions which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established. In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives.

Article 59 of the EEC Treaty precludes provisions of a Member State which prohibit a company established in another Member State from providing patent-owners in the territory of the first State with a service for monitoring those patents and renewing them by payment of the requisite fees, on the ground that, by virtue of those provisions, such activities are reserved to persons holding a special professional qualification, such as a qualification as patent agent.

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