# C_2010063EN.01003801.xml

| 13.3.2010 | EN | Official Journal of the European Union | C 63/38 |
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13.3.2010

EN

Official Journal of the European Union

C 63/38

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Action brought on 8 January 2010 — European Commission v Republic of Austria

(Case C-10/10)

2010/C 63/60

Language of the case: German

Parties

Parties

Applicant: European Commission (represented by: R. Lyal and W. Mölls, Agents)

Applicant:

Defendant: Republic of Austria

Defendant:

Form of order sought

Form of order sought

| — | declare that, by authorising tax deductibility for donations to research and educational institutions only in the case of institutions established within Austria, the Republic of Austria has failed to fulfil its obligations under Article 56 EC and Article 40 EEA; |
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declare that, by authorising tax deductibility for donations to research and educational institutions only in the case of institutions established within Austria, the Republic of Austria has failed to fulfil its obligations under Article 56 EC and Article 40 EEA;

| — | order the Republic of Austria to pay the costs of the proceedings. |
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order the Republic of Austria to pay the costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

In the Commission’s view, donations to research and educational institutions which pursue non-commercial objectives come under the free movement of capital under Article 56 EC. The Austrian Government allows tax deduction only in the case of donations made to such institutions which are established in Austria, but not in the case of donations made to similar institutions in other Member States or in other States of the European Economic Area. This, the Commission submits, constitutes a breach of Article 56 EC and of Article 40 EEA.

In justification of this rule, the Republic of Austria argues that this amounts, in substantive terms, to a permissible restriction of the favourable treatment of donations which releases the State from what would otherwise be an obligation on it to provide finance. This, it contends, follows inter alia from the judgment in Case C-396/04 Centro di Musicologia Walter Stauffer. (1)

Centro di Musicologia Walter Stauffer

1

The Commission takes issue with that justification. The provisions in dispute, it argues, draw a distinction on purely geographical grounds and irrespective of the purpose of the beneficiary institutions. Furthermore, there is no evidence of the interaction, claimed by the Republic of Austria, between direct State financing and the favourable tax treatment accorded to donations made by private individuals. Even if the interaction claimed by the Republic of Austria did exist, it would not, in the Commission’s view, justify any restriction of the free movement of capital as it does not involve a qualified interest relating to the tax system within the terms of the judgment of the Court of Justice in Case C-204/90 Bachmann. (2)

Bachmann

2

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(1)  Judgment in Case C-386/04 Centro di Musicologia Walter Stauffer [2006] ECR I-8203.

1

Centro di Musicologia Walter Stauffer

(2)  Judgment in Case C-204/90 Bachmann [1992] ECR I-249.

2

Bachmann

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