Judgment of the General Court Third Chamber, Extended Composition of 18 October 2023, Clariant and Clariant International v Commission, T-590/20

• Date: 18 October 2023
• Year: 2023

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in the light of the privileged relationship between the European Union and the European Free Trade

Association (EFTA) States that one of its main objectives, namely extending to the EFTA States the

internal market established within the territory of the European Union, must be understood. Thus, an

objective relating to social policy, such as the promotion and provision of affordable rented

accommodation in Member States and States which are party to the EEA Agreement, may, in

principle, constitute an overriding reason in the public interest capable of justifying restrictions on the

free movement of capital. However, it is not apparent that legislation such as that at issue is suitable

for securing, in a consistent and systematic manner, the attainment of that objective. In particular,

that legislation, which applies generally, does not focus on places where the shortage of affordable

rented accommodation is particularly acute, such as in large German cities. Moreover, all categories

of immovable property let for residential purposes, from the most basic to the most luxurious, may

be valued at 90% of their market value for the purposes of calculating inheritance tax. In addition, it is

not apparent that that legislation requires heirs to retain their housing for a certain period and to use

it for rental purposes, so that they may, after obtaining the tax advantage at issue, sell that housing or

use it as a second home. Consequently, that tax advantage cannot be regarded as justified by the

objective of promoting and providing affordable rented accommodation in Member States and States

which are party to the EEA Agreement.

Second, the Court holds that the overriding reason in the public interest relating to the need to

guarantee the effectiveness of fiscal supervision cannot justify the restriction on the free movement

of capital brought about by the national legislation at issue. After recalling the relevant provisions of

the Tax Agreement between Germany and Canada,

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the Court finds that the German authorities are

in a position to ask the competent Canadian authorities for the information necessary to verify that

the conditions laid down by the national legislation at issue are satisfied in order to grant the tax

advantage referred to above when the immovable property is located in Canada.

III. COMPETITION

1. AGREEMENTS, DECISIONS AND CONCERTED PRACTICES (ARTICLE 101

TFEU)

Judgment of the General Court (Third Chamber, Extended Composition) of 18 October

2023, Clariant and Clariant International v Commission, T-590/20

Link to the full text of the judgment

Competition – Agreements, decisions and concerted practices – Ethylene market – Decision finding an

infringement of Article 101 TFEU – Coordination on a purchase price element – Settlement procedure –

Fine – Adjustment of the basic amount of the fine – Point 37 of the Guidelines on the method of setting

fines – Repeated infringement – Point 28 of the Guidelines on the method of setting fines – Unlimited

jurisdiction – Counterclaim for increase of the amount of the fine

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Agreement between the Federal Republic of Germany and Canada for the Avoidance of Double Taxation with respect to Taxes on Income

and certain other Taxes, the prevention of Fiscal Evasion and the Assistance in Tax Matters, concluded in Berlin on 19 April 2001 (BGBl. 2002

II, p. 670).