Case C-287/04: Action brought on 5 July 2004 by the Commission of the European Communities against the Kingdom of Sweden
Date: 2004-09-11
Institutions: Court of Justice
Subjects: European Commission, Sweden, action for failure to fulfil an obligation, arrangement of working time, national implementing measure, rest period, working time

C 228/26

EN

Official Journal of the European Union

11.9.2004

Pleas in law and main arguments:

The applicants contend that the order of the Court of First
Instance should be set aside on the grounds that the Court of
First Instance has committed a breach of procedure by treating
their application as an application made under Article 226 EC
when, in fact, it was an application under Article 232 EC.

Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 28 April 2004 in the case of FKP
Scorpio Konzertproduktionen GmbH against Finanzamt
(Tax Office) Hamburg-Eimsbüttel

Action brought on 5 July 2004 by the Commission of the
European Communities against the Kingdom of Sweden

(Case C-287/04)

(2004/C 228/53)

An action against the Kingdom of Sweden was brought before
the Court of Justice of the European Communities on 5 July
2004 by the Commission of the European Communities, repre-
sented by L. Ström and N. Yerrell, acting as Agents, with an
address for service in Luxembourg.

The Commission claims that the Court should:

— declare that, by failing to implement Articles 3, 6 and 8 of
Council Directive 93/104/EC (1) of 23 November 1993
concerning certain aspects of the organisation of working
time, the Kingdom of Sweden has failed to fulfil its obliga-
tions under that directive;

— order the Kingdom of Sweden to pay the costs of the

proceedings.

Pleas in law and main arguments

The Swedish legislation does not guarantee, as required under
Article 3 of the directive, a minimum daily rest period of 11
consecutive hours per 24-hour period. The fact
the
majority of workers are covered by collective agreements
which governed those questions does not affect the obligation
to implement that provision in respect of all workers.

that

As regards Article 6 of the directive,
the normal reference
period of four months laid down in Article 16(2) for the appli-
cation of Article 6 may not, under Article 17(4), be extended
to more than six months. The scope of the possible derogation
as regards the reference period is less than that provided for by
the Swedish legislation.

Article 8 of the directive has not been expressly incorporated
in the Swedish legislation.

(1) OJ L 307, 13.12.1993, p. 18.

(Case C-290/04)

(2004/C 228/54)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Federal
Finance Court) (Germany) of 28 April 2004, received at the
Court Registry on 7 July 2004, for a preliminary ruling in the
case of FKP Scorpio Konzertproduktionen GmbH against Finan-
zamt Hamburg-Eimsbüttel on the following questions:

1. Must Articles 59 and 60 of the EC Treaty be interpreted as
meaning that they are infringed if a payment debtor estab-
lished in Germany of a payment creditor established abroad
within the Community (in this case:
in the Netherlands),
who holds the nationality of a Member State, can be held
liable under the fifth sentence of Paragraph 50a(5) of the
Einkommensteuergesetz 1990 in the version in force in
1993 (Law on Income Tax, hereinafter: ‘the EStG’) because
he has failed to deduct tax at source pursuant to Paragraph
50a(4) of the EStG, whereas payments to a payment creditor
liable without limitation to income tax in Germany (that is,
a German resident) are not subject to any deduction of tax
at source pursuant to Paragraph 50a(4) of the EStG and
therefore no liability of the payment debtor for non-deduc-
tion or insufficient deduction of tax at source can arise?

2. Is the answer to Question 1 different if, at the time of
providing his service,
the payment creditor established
abroad within the Community is not a national of a
Member State?

3. If the answer to Question 1 is in the negative:

(a) Are Articles 59 and 60 of the EC Treaty to be inter-
preted as meaning that business expenses incurred by a
payment creditor established abroad within the Com-
munity and economically connected with his activities
in Germany giving rise to the payments must be taken
into account in reduction of tax by the debtor at the
time of deducting tax at source pursuant to Paragraph
50a(4) of the EStG because, as is also the case with
German residents, only the net income remaining after
deduction of business expenses is subject to income tax?