Building on earlier cases on fxed establishment (FE), the CJEU has decided, in the case of Berlin Chemie A Menarini Sarl (C-333/20), that Berlin Chemie (BC), a German company, does not have a FE in Romania. Although BC has permanent access to human and technical resources in Romania that are owned by its local subsidiary, Berlin Chemie A Menarini (BCAM), the CJEU did not think BC could dispose of those resources as though they were its own; so, while third party owned resources can create a FE for the user, these ones did not. Also, the CJEU was clear that the same resources cannot, at the same time, be used by BCAM to provide services to BC and also create a FE for BC. As it would appear from the documents submitted to the CJEU that they are so used by the subsidiary, it follows they have not also created a FE for BC.
Source KPMG
