ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 272/7

Action brought on 9 July 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-307/08)

(2008/C 272/09)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J.-P. Keppenne and R. Lyal, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— Declare that, since it does not prevent double taxation of dividends paid by undertakings domiciled in another Member State or EEA/EFTA State to natural persons, the Kingdom of Belgium has failed to fulfil its obligations under Article 56 EC and Article 40 of the European Economic Area Agreement;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

By its action, the Commission submits that Belgian tax legislation creates an unjustified restriction on the free movement of capital inasmuch as it taxes dividends payment to natural persons by companies established in another Member State or in a State of the European Economic Area (‘incoming’ dividends) in the same way as dividends paid by companies established in Belgium (‘internal’ dividends), without taking into account taxation at source paid in the State from which the dividends originate. Such legislation penalises cross-border capital transactions since it dissuades individual taxpayers from investing in shares in foreign companies and at the same time it constitutes an obstacle to the accumulation of capital in Belgium for companies having their registered office in other Member States.
EN Official Journal of the European Union C 285/18

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 31 July 2008 — Modehuis A. Zwijnenburg BV, other party: Staatssecretaris van Financiën

(Case C-352/08)

(2008/C 285/30)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Modehuis A. Zwijnenburg BV

Other party: Staatssecretaris van Financiën

Question referred

Must Article 11(1)(a) of [Council] Directive 90/434/EEC (1) of 23 July 1990 be interpreted as meaning that the benefits of that Directive may be withheld from a tax-payer where a series of legal transactions is aimed at preventing the levying of a tax other than the taxes to which the benefits set out in that Directive relate?

(1) [Council] Directive 90/434/EEC on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1).
EN Official Journal of the European Union C 285/17

Action brought on 24 July 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-342/08)

(2008/C 285/29)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and A. Sipos, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that, by failing to ensure the elaboration of an external emergency plan for all the establishments covered by Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (1), amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 (2), the Kingdom of Belgium has failed to fulfil its obligations under Article 11(1)(c) of that directive;

— order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission submits that the elaboration of external emergency plans for measures to be taken outside the establishments covered by Article 9 of Directive 96/82/EC is a fundamental requirement of that directive. The Kingdom of Belgium has failed to fulfil its obligations under the directive in so far as it has not drawn up such plans for 59 establishments situated on its territory while, according to the wording of the directive, those plans should have been drawn up at the latest 3 years after the time-limit for transposing the directive had elapsed, that is on 3 February 2002.

(1) OJ 1997 L 10, p. 13.

(2) Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances (OJ 1997 L 345, p. 97).
EN Official Journal of the European Union C 327/21

Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 23 October 2008 — Alstom Power Hydro v Valsts ieņēmumu dienests

(Case C-472/08)

(2008/C 327/37)

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Applicant: Alstom Power Hydro

Defendant: Valsts ieņēmumu dienests

Question referred

On a proper construction of Article 18(4) of Council Directive 77/388/EEC (1) of 17 May 1977, is it contrary to that provision for domestic legislation to lay down a limitation period of three years for the exercise of the right to recover sums of VAT overpaid (the difference between output tax and deductible input tax)?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).
2.

Proceeding on the basis that the DNA sequence described in claim 6 of patent no EP 0 546 090 is present in the soy meal imported into the Community by Cefetra and ACTI, and that the DNA is incorporated in the soy meal for the purposes of Article 9 of Directive 98/44 and that it does not perform its function therein: does the protection of a patent on biological material as provided for by Directive 98/44, in particular Article 9, preclude the national patent legislation from offering (in parallel) absolute protection to the product (the DNA) as such, regardless of whether that DNA performs its function, and must the protection as provided under Article 9 of the Directive therefore be deemed to be exhaustive in the situation referred to in that article, in which the product consists of genetic information or contains such information, and the product is incorporated in material which contains the genetic information?
EN Official Journal of the European Union C 327/14

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 6 October 2008 — F. Gielen, other party: Staatssecretaris van Financiën

(Case C-440/08)

(2008/C 327/24)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: F. Gielen

Other party: Staatssecretaris van Financiën

Question referred

Is Article 43 EC to be interpreted as meaning that it does not preclude the application of a provision in a Member State's tax legislation to profits which a national of another Member State (foreign taxable person) has derived from a part of his undertaking operated in the first Member State, if that provision, when interpreted in a particular way, indeed makes a distinction between domestic and foreign taxable persons which — viewed in isolation — is contrary to Article 43 EC, but the foreign taxable person concerned has had an opportunity to opt for treatment as a domestic taxable person and has not done so for reasons of his own?
—

Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, and, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under the directive;
EN Official Journal of the European Union C 19/17

Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 19 November 2008 — Ingeniørforeningen i Danmark for Ole Andersen v Region Syddanmark

(Case C-499/08)

(2009/C 19/31)

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicant: Ingeniørforeningen i Danmark for Ole Andersen

Defendant: Region Syddanmark

Question referred

Is the prohibition of direct or indirect discrimination on grounds of age contained in Articles 2 and 6 of Council Directive 2000/78/EC (1) to be interpreted as precluding a Member State from maintaining a legal situation whereby an employer, upon dismissal of a salaried employee who has been continuously employed in the same undertaking for 12, 15 or 18 years, must, upon termination of the salaried employee's employment, pay an amount equivalent to one, two or three months' salary respectively, but as meaning that this allowance is not to be paid where the salaried employee, upon termination of employment, is entitled to receive an old-age pension from a pension scheme to which the employer has contributed?

(1) OJ L 303, 2.12.2000, p. 16.
EN Official Journal of the European Union C 19/16

Action brought on 11 November 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-487/08)

(2009/C 19/29)

Language of the case: Spanish

Parties

Applicant(s): Commission of the European Communities (represented by: R. Lyal and I. Martinez del Peral Cagigal)

Defendant(s): Kingdom of Spain

Form of order sought

— A declaration that, by giving different treatment to dividends distributed to foreign and domestic shareholders, the Kingdom of Spain has failed to fulfil its obligations under Article 56 EC and Article 40 of the EEA Agreement.

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Under the Spanish legislation, companies which have a substantial holding in the capital of a branch may deduct from their taxable income 100 % of the gross dividend received from that holding. In order to enjoy this facility, parent companies resident in Spain must have had a holding of at least 5 % of the capital of the resident branch of the company for an uninterrupted period of at least one year. Dividends which qualify for the application of that facility are exempt from deduction at source.

In order to enjoy that exemption, parent companies not resident in Spain were required to have a holding of 20 %, which was reduced to 15 % from 1 January 2007 and will be reduced to 10 % from 1 January 2009. Thus, unlike parent companies resident in Spain, parent companies from other Member States of the EC and Member States party to the Agreement on the European Economic Area which have a holding in the capital of at least 5 % but lower than the limits mentioned have to pay tax in respect of the dividends paid by the branch.

The Commission takes the view that by imposing a requirement of a larger holding in the capital for parent companies which are not resident than is imposed on resident companies in order to enjoy the exemption from tax for dividends distributed by the branches in Spain the difference in treatment under the Spanish legislation constitutes discrimination contrary to Article 56 EC and Article 40 of the EEA Agreement. The Commission can see no justification for this additional fiscal burden which falls on parent companies from other Member States and the Member States of the EEA.
EN Official Journal of the European Union C 19/17

Action brought on 14 November 2008 — Commission of the European Communities v French Republic

(Case C-492/08)

(2009/C 19/30)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Afonso, acting as Agent)

Defendant: French Republic

Form of order sought

— Declare that by applying a reduced rate of value added tax (VAT) to services provided by lawyers, lawyers at the Council of State and at the Court of Cassation and avoués, for which they are paid in part or in whole by the State through legal aid, France has failed to fulfil its obligations under Articles 96 and 98(2) of the VAT directive (1);

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission disputes the application, by the defendant, of a reduced rate of VAT for services provided in the context of legal aid by lawyers, lawyers at the Council of State and at the Court of Cassation as well as avoués, as such services are not included in any of the categories listed in Annex III of Directive 2006/112/EC.

In order to respond to the defendant's three main arguments, the Commission submits first that the guarantee of access to justice cannot be an appropriate reason for derogating from the normal rate of VAT on the services of lawyers to the extent that that guarantee is connected more to the range of aid granted by the State than to the rate of VAT, which is determined in a uniform manner at Community level.

Secondly, according to the applicant, the social nature of the activities at issue is not sufficient for them to be included in the other categories of services listed in Annex III of the directive, for which a reduction in the rate of VAT is allowed as compared to the normal applicable rate. According to the Court's settled case-law, a narrow interpretation of the nature of those services would be necessary so as to maintain the restrictive nature of that annex.

Finally, the Commission states that the aim both of Articles 96 and 98(2) of the VAT directive and of Annex III thereof is not to avoid distortions of competition between economic operators providing the same goods or services, but more simply to encourage a progressive harmonisation of the legislation of the Member States, by harmonising the rates of VAT applied and limiting the transactions which can be subject to reduced rates.

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 32/20

Reference for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 November 2008 — Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos v Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María Del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet

(Case C-518/08)

(2009/C 32/34)

Language of the case: French

Referring court

Tribunal de grande instance de Paris

Parties to the main proceedings

Applicants: Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos

Defendants: Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet

Questions referred

1. Can France, subsequent to [Directive 2001/84/EC] of 27 September 2001 (1), retain a resale right allowed only to the heirs to the exclusion of legatees or successors in title?

2. Do the transitional provisions of Article 8(2) and (3) of [Directive 2001/84/EC] of 27 September 2001 allow France to have a derogation?

(1) Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ L 272, p. 32).
2.

Should that question be answered in the negative: Is it contrary to the principles developed by the Court of Justice in the judgments of 26 June 2008 (in Joined Cases C-329/06 and C-343/06 Wiedemann and Joined Cases C-334/06 and C-336/06 Zerche) for the national driving licence authorities and the courts of the host Member State, when examining compliance with the residence condition in Article 9 of Directive 91/439/EEC by the issuing Member State at the time of issuing the driving licence, in a case where firm evidence exists that the condition was not met at the time the driving licence was issued, to conduct further investigations exclusively in the issuing Member State, for example, with registration authorities, landlords, or employers, and to use those facts, provided that they have evidentiary force, alone or together with information from the issuing Member State or the holder of the driving licence himself?
2.

Is the pro-rata-temporis principle, as set out in Clause 4(2) of the Framework Agreement, to be interpreted as precluding a provision of national law such as Paragraph 55(5) of the L-VBG, under which in the event of a change in the working hours of an employee, the amount of leave not yet taken is adjusted proportionally to the new working hours, with the result that the worker who reduces his working hours from full-time to part-time, has his entitlement to leave accumulated while working full-time reduced or, as a part-time worker, he can only take that leave with a reduced level of payment for leave?
EN Official Journal of the European Union C 44/29

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 26 November 2008 — Criminal proceedings against Vítor Manuel dos Santos Palhota, Mário de Moura Gonçalves, Fernando Luís das Neves Palhota, Termiso Lda

(Case C-515/08)

(2009/C 44/49)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Antwerpen

Parties to the main proceedings

Criminal proceedings against Vítor Manuel dos Santos Palhota, Mário de Moura Gonçalves, Fernando Luís das Neves Palhota, Termiso Lda

Question referred

Do the provisions of Article 8 of the Law of 5 March 2002 and Articles 3, 4 and 5 of the Royal Decree of 29 March 2002 (implementation decree) infringe Article 49 and Article 50 of the EC Treaty, in that they impose on foreign employers who wish to post workers the prior obligation of sending a declaration of posting to the Social Laws Inspection Service (Dienst Toezicht op de Sociale Wetten) and also of keeping documents which are comparable with the Belgian individual accounts or pay slips, as a result of which access to the Belgian services market is prevented or at least hampered?
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (1), or in any event by failing to communicate those provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 69/20

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 19 December 2008 — Müller Fleisch GmbH v Land Baden-Württemberg

(Case C-562/08)

(2009/C 69/36)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Müller Fleisch GmbH

Defendant: Land Baden-Württemberg

Interested party: Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

Question referred

Is Article 6(1) of, in conjunction with Annex III, Chapter A, Part I to, Regulation (EC) No 999/2001 (1), as amended by Commission Regulation (EC) No 1248/2001 (2) of 22 June 2001, to be interpreted as precluding the expansion of mandatory testing to all bovine animals over 24 months of age, as established by the BSE-Untersuchungsverordnung (German Regulation on BSE testing) of 1 December 2000 (BGBl I, p. 1659), amended by the Regulation of 25 January 2001 (BGBl I, p. 164)?

(1) Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (OJ 2001 L 147, p. 1).

(2) Commission Regulation (EC) No 1248/2001 of 22 June 2001 amending Annexes III, X and XI to Regulation (EC) No 999/2001 of the European Parliament and of the Council as regards epidemio-surveillance and testing of transmissible spongiform encephalopathies (OJ 2001 L 173, p. 12).
EN Official Journal of the European Union C 55/5

Appeal brought on 24 September 2008 by Calebus SA against the judgment delivered on 14 July 2008 in Case T-366/06 Calebus SA v Commission of the European Communities, supported by the Kingdom of Spain

(Case C-421/08 P)

(2009/C 55/08)

Language of the case: Spanish

Parties

Appellant: Calebus SA (represented by: R. Bocanegra Sierra, lawyer)

Other parties to the proceedings: Commission of the European Communities and the Kingdom of Spain

Form of order sought

Take note of the fact that the appeal was lodged against the order of the Court of First Instance of 14 July 2008 declaring inadmissible the action brought by Calebus SA in Case T-366/06, allow the appeal and, after completion of all the legal formalities, give a judgment upholding the appeal, setting aside the judgment under appeal, declaring the action admissible and uphold its claims.

Pleas in law and main arguments

The appeal is brought against the order of 14 July 2008 of the Court of First Instance declaring inadmissible the action brought in Case T-366/06 by Calebus SA against Decision 2006/613/EC (1) of 19 July 2006 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Mediterranean biogeographical region as regards the inclusion of the farm ‘Las Cuerdas’ as the SCI ‘ES61110006 Ramblas de Gergal, Tabernas y Sur de Sierra Alhamilla’, which appears on that list.

In the appeal, the appellant takes the view that the order under appeal is vitiated by an error of law when it states that the action is inadmissible because the appellant company has no direct interest in the annulment of the decision. Contrary to the findings in the order, Decision 2006/613 requires Member States, in any event, per se and automatically to make sites classified as Sites of Community Importance (SCI), including the farm ‘Las Cuerdas’, to a protection scheme which necessarily limits the uses to which it may be put, reducing their profitability and sale value. The Member States have discretion to determine the specific content of those measures, but not to decide whether or not to submit the farms to measures of that type, so that the existence of that discretion is not contrary to the direct effect of the decision on the legal status of the appellant undertaking.

(1) OJ 2006 L 259, p. 1.
EN Official Journal of the European Union C 141/22

Appeal by VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH against the order of the Court of First Instance (Second Chamber) of 25 June 2008 in Case T-185/08 VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH v Commission of the European Communities, brought on 27 August 2008

(Case C-387/08 P)

2009/C 141/39

Language of the case: German

Parties

Appellants: VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH (represented by: C. Antweiler, Rechtsanwalt)

Other party to the proceedings: Commission of the European Communities

On 27 August 2008 VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH brought an appeal before the Court of Justice of the European Communities against the order of the Court of First Instance of the European Communities of 25 June 2008 in Case T-185/08 VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH v Commission of the European Communities. The appellants are represented by Dr Clemens Antweiler, Rechtsanwalt, Rotthege Wassermann & Partner, Postfach 20 06 69, DE-40103 Düsseldorf.

By order of 3 April 2009, the Court of Justice of the European Communities (Seventh Chamber) dismissed the appeal and decided that the appellants must bear their own costs.