Judgment of the Court (Sixth Chamber) of 10 May 2012 — Commission v Belgium

(Case C-370/11)

‛Failure of a Member State to fulfil obligations — Articles 36 and 40 of the EEA Agreement — Discriminatory taxation of the capital gains obtained on the repurchase of shares in collective investment undertakings established in Norway or Iceland and not authorised under Directive 85/611/EEC’

International agreements — Agreement establishing the European Economic Area — Free movement of capital — Restrictions — Fiscal legislation — Income tax (EEA Agreement, Art. 40; Council Directive 85/611) (see para. 20, operative part)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 36 and 40 of the Agreement on the European Economic Area — Discriminatory taxation of capital gains obtained on the buying back of shares of undertakings for collective investment established in Norway or Iceland which are not authorised in accordance with Directive 85/611/EEC.

Operative part

The Court:

1. Declares that, by maintaining rules according to which the capital gains obtained on the repurchase of shares in collective investment undertakings, more than 40% of the assets of which is invested in debt securities, and which are not authorised under Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), are not taxable where those undertakings are established in Belgium, whereas the capital gains obtained on the repurchase of shares in such undertakings established in Norway or Iceland are taxable, the Kingdom of Belgium has failed to fulfil its obligations under Article 40 of the Agreement on the European Economic Area of 2 May 1992;

2. Orders the Kingdom of Belgium to pay the costs.

Judgment of the Court (Sixth Chamber) of 10 May 2012 — Commission v Belgium

(Case C-370/11)

‛Failure of a Member State to fulfil obligations — Articles 36 and 40 of the EEA Agreement — Discriminatory taxation of the capital gains obtained on the repurchase of shares in collective investment undertakings established in Norway or Iceland and not authorised under Directive 85/611/EEC’

International agreements — Agreement establishing the European Economic Area — Free movement of capital — Restrictions — Fiscal legislation — Income tax (EEA Agreement, Art. 40; Council Directive 85/611) (see para. 20, operative part)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 36 and 40 of the Agreement on the European Economic Area — Discriminatory taxation of capital gains obtained on the buying back of shares of undertakings for collective investment established in Norway or Iceland which are not authorised in accordance with Directive 85/611/EEC.

Operative part

The Court:

1. Declares that, by maintaining rules according to which the capital gains obtained on the repurchase of shares in collective investment undertakings, more than 40% of the assets of which is invested in debt securities, and which are not authorised under Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), are not taxable where those undertakings are established in Belgium, whereas the capital gains obtained on the repurchase of shares in such undertakings established in Norway or Iceland are taxable, the Kingdom of Belgium has failed to fulfil its obligations under Article 40 of the Agreement on the European Economic Area of 2 May 1992;