On April 7, 2022, the Court of Justice of the European Union (hereinafter: CJEU) rendered judgment in the Berlin Chemie case (C-333/20). At issue was whether a sub‑subsidiary in this specific case qualifies as a fixed establishment of its second-tier parent company. The CJEU concluded that this was not the case. Although this appears to be a reassuring outcome in practice, the CJEU has allowed for the possibility that there could indeed be a fixed establishment. In its Berlin Chemie judgment, the CJEU provided more guidance on the circumstances in which the human and technical resources of an independent legal entity could result in a separate fixed establishment. Whether this provides the desired clarity in practice is debatable. After recent CJEU judgments in, among others, Dong Yang (C-547/18) and Titanium (C-931/19), this case shows that the fixed establishment concept continues to demand attention.
Source Meijburg
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