Judgment of the Court (Fifth Chamber) of 21 November 2002 in Case C-436/00 (Reference for a preliminary ruling from the Regeringsrätten): X, Y v Riksskatteverket (Freedom of establishment — Free movement of capital — Income tax — Tax advantages for the transfer at undervalue of shares to companies in which the transferor has a holding)
Date: 2003-01-11
Institutions: Court of Justice
Subjects: EU Member State, capital increase, interpretation of the law, legal person, public limited company, shareholding

11.1.2003

EN

Official Journal of the European Communities

C 7/3

of the limitation periods laid down in Article 3(1) of Council
Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on
the protection of the European Communities’ financial interests, to
reduce the area actually determined in order to calculate the aid
payable in respect of the previous years.

In accordance with the fourth paragraph of Article 9(2) of Regulation
No 3887/92, the reductions referred to in the first and second
paragraphs of that article are not to be applied if the farmer shows
that his determination of the area was accurately based on information
recognised by the competent authority. It is for the national court to
establish whether or not that has been shown in the case in the main
proceedings.

the implementation of

Point 3 of Section A of the Annex to Council Directive 93/22/EEC
of 10 May 1993 on investment services in the securities field, which
investments, precludes national
defines managing portfolios of
legislation which departs from that definition by not requiring, for
the purposes of
that the
management of portfolios of investments should be ‘on a discriminat-
ory, client-by-client basis’ and ‘in accordance with mandates given by
investors’. However, there is nothing to prevent a Member State from
extending by national legislation the applicability of the provisions of
that directive to operations not covered by it, provided that it is made
clear that the national legislation in question does not constitute the
transposition of the directive, but arises from the independent will of
the legislature.

that directive,

( 1) OJ C 285 of 7.10.2000.

(1) OJ C 355 of 9.12.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 21 November 2002

in Case C-356/00 (Reference for a preliminary ruling from
the Tribunale amministrativo regionale per la Toscana):
Antonio Testa, Lido Lazzeri v Commissione Nazionale
per le Società e la Borsa (Consob) (1)

(Directive 93/22/EEC — Investment services in the securities
field — Managing portfolios of investments)

(2003/C 7/04)

JUDGMENT OF THE COURT

(Fifth Chamber)

of 21 November 2002

in Case C-436/00 (Reference for a preliminary ruling from
the Regeringsrätten): X, Y v Riksskatteverket (1)

(Freedom of establishment — Free movement of capital —
Income tax — Tax advantages for the transfer at undervalue
of shares to companies in which the transferor has a holding)

(Language of the case: Italian)

(2003/C 7/05)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(Language of the case: Swedish)

In Case C-356/00: Reference to the Court under Article 234
EC by the Tribunale amministrativo regionale per la Toscana
(Italy) for a preliminary ruling in the proceedings pending
before that court between Antonio Testa, Lido Lazzeri and
Commissione Nazionale per le Società e la Borsa (Consob),
intervener: Banca Fideuram SpA, on the interpretation of
Point 3 of Section A of the Annex to Council Directive 93/22/
EEC of 10 May 1993 on investment services in the securities
field (OJ 1993 L 141, p. 27), the Court (Fifth Chamber),
the Chamber,
composed of: M. Wathelet, President of
C.W.A. Timmermans, A. La Pergola, P.
Jann and S. von
Bahr (Rapporteur), Judges; L.A. Geelhoed, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 21 November 2002, in which it has ruled:

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-436/00: Reference to the Court under Article 234
EC by the Regeringsrätten (Sweden) for a preliminary ruling in
the proceedings pending before that court between X, Y and
Riksskatteverket, on the interpretation of Articles 43 EC, 46
EC, 48 EC, 56 EC and 58 EC, the Court (Fifth Chamber),
composed of: M. Wathelet, President of
the Chamber,
C.W.A. Timmermans (Rapporteur), D.A.O. Edward, P. Jann
and A. Rosas, Judges; J. Mischo, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 21 No-
vember 2002, in which it has ruled:

C 7/4

EN

Official Journal of the European Communities

11.1.2003

1. Articles 43 EC and 48 EC preclude a national provision such
as that at issue in the main proceedings, which excludes the
transferor at undervalue of shares in companies from the benefit
of deferral of tax due on capital gains made on those shares
where the transfer is to a foreign legal person in which the
transferor directly or indirectly has a holding — provided that
that holding gives him definite influence over the decisions of
that foreign legal person and allows him to determine its
activities — or to a Swedish limited company which is a branch
of such a foreign legal person.

2. Articles 56 EC and 58 EC preclude a national provision such
as that at issue in the main proceedings, which excludes the
transferor at undervalue of shares in companies from the benefit
of deferral of tax due on capital gains made on those shares
where the transfer is to a foreign legal person in which the
transferor directly or indirectly has a holding which is not such
as to give him definite influence over the decisions of that
foreign legal person or allow him to determine its activities.

preliminary ruling in the proceedings pending before that
court between Cofidis SA and Jean-Louis Fredout, on the
interpretation of Council Directive 93/13/EEC of 5 April 1993
on unfair terms in consumer contracts (OJ 1993 L 95,
p. 29), the Court (Fifth Chamber), composed of: M. Wathelet,
Timmermans,
President
the
D.A.O. Edward, A. La Pergola and P.
Jann (Rapporteur),
Judges; A. Tizzano, Advocate General; L. Hewlett, Principal
Administrator, for the Registrar, has given a judgment on
21 November 2002, in which it has ruled:

Chamber,

C.W.A.

of

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in
consumer contracts precludes a national provision which, in proceed-
ings brought by a seller or supplier against a consumer on the basis
of a contract concluded between them, prohibits the national court,
on expiry of a limitation period, from finding, of its own motion or
following a plea raised by the consumer, that a term of the contract
is unfair.

( 1) OJ C 45 of 10.2.2001.

(1) OJ C 61 of 24.2.2001.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

of 21 November 2002

(Sixth Chamber)

of 21 November 2002

in Case C-473/00 (Reference for a preliminary ruling from
the tribunal d’instance de Vienne): Cofidis SA v Jean-
Louis Fredout (1)

in Case C-23/01 (Reference for a preliminary ruling from
the Hof van Beroep te Brussel): Robelco NV v Robeco
Groep NV (1)

(Directive 93/13/EEC — Unfair terms in consumer contracts
— Action brought by a seller or supplier — National
provision prohibiting the national court from finding a term
unfair, of its own motion or following a plea raised by the
consumer, after the expiry of a limitation period)

(Directive 89/104/EEC — Article 5(5) — Provisions on
protection against use of a sign other than for the purposes
of distinguishing goods or services — Extent of such
protection — Signs similar to the mark)

(2003/C 7/06)

(Language of the case: French)

(2003/C 7/07)

(Language of the case: Dutch)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-473/00: Reference to the Court under Article 234
for a
EC by the Tribunal d’instance de Vienne (France)

In Case C-23/01: Reference to the Court under Article 234 EC
by the Hof van Beroep te Brussel (Belgium) for a preliminary
ruling in the proceedings pending before that court between