First Criterium: a fixed establishment must be have a sufficient degree of permanence and a suitable structure in terms of technical and human resources
- Conclusion ECJ
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- Given that a legal person, even if it has only one customer, is assumed to use the technical and human resources at its disposal for its own needs, it is only if it were established that, by reason of the applicable contractual provisions, the German company had the technical and human resources of the Romanian company at its disposal as if they were its own that the German company could have a suitable structure with a sufficient degree of permanence in Romania
Second criterion: the establishment is characterised by a structure which is capable, in terms of human and technical resources, of enabling it to receive the services supplied to it and to use them for its own business needs
- Interesting point 54 of the Decision: ”Lastly, it is apparent from the documents before the Court that, in the case in the main proceedings, the human and technical resources which were made available to the German company by the Romanian company and which, according to the Romanian tax authorities, make it possible to establish the existence of a fixed establishment of the German company in Romania, are also those through which the Romanian company supplies the services to the German company. Yet, the same means cannot be used both to provide and receive the same services.”
- Conclusion
- The German company does not have a fixed establishment in Romania, since it does not have a structure in that Member State allowing it to receive services there provided by the Romanian company and to use those services for the purposes of its economic activity of selling and supplying pharmaceutical products.
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