Case C-433/04: Action brought on 8 October 2004 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2004-12-04
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, agency abroad, building industry, contract, debt, freedom to provide services, liability, tax system

C 300/34

EN

Official Journal of the European Union

4.12.2004

Action brought on 7 October 2004 by the Commission of
the European Communities against Edith Cresson

Action brought on 8 October 2004 by the Commission of
the Kingdom of
the European Communities against

(Case C-432/04)

(2004/C 300/64)

An action against Edith Cresson was brought before the Court
of Justice of the European Communities on 7 October 2004 by
the Commission of the European Communities, represented by
Hans Peter Hartvig and Julian Currall, acting as Agents, with an
address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that Edith Cresson has failed to comply with her

obligations under Article 213 EC;

2. consequently, order the forfeiture in part or in whole of Mrs
Cresson's pension rights and/or any other benefits linked to
those rights or standing in their stead, the Commission
leaving it to the discretion of the Court to determine the
duration and extent of that forfeiture;

3. order Mrs Cresson to pay the costs.

Pleas in law and main arguments

During her term of office as a Member of the Commission, Mrs
Cresson engaged in acts of favouritism for the benefit of two
personal friends, contrary to the public interest and to her obli-
gations under Article 213 EC. One of them was recruited on
the initiative of Mrs Cresson although his profile did not corre-
spond to the various posts to which he was recruited. Protec-
tion by Mrs Cresson then became apparent on several occa-
sions even though the work he performed was manifestly
inadequate in quality, quantity and relevance. Similarly, again
on the initiative of Mrs Cresson, contracts were offered to
another of her friends, without corresponding to a request or
requirement of the Commission. Mrs Cresson's conduct was
not dictated by the interests of the institution but was moti-
vated essentially by the wish to do a favour for those two
persons. At the very least, Mrs Cresson did not at any time
make inquiries as to the correctness of the decisions made or
procedures applied, although such a check was necessary in the
case of persons with whom she had relations of friendship.
That behaviour thus appears to constitute an act of favouritism
or at the least obvious negligence.

Belgium

(Case C-433/04)

(2004/C 300/65)

Justice of

An action against the Kingdom of Belgium was brought before
the European Communities on 8
the Court of
October 2004 by the Commission of the European Commu-
nities, represented by D. Triantafyllou, acting as Agent, with an
address for service in Luxembourg.

The Commission claims that the Court should:

— declare that, by obliging principals and contractors who
have recourse to entering into contracts with foreign parties
not registered in Belgium to withhold 15 % of the sum
payable in respect of
the works carried out, and by
imposing on those principals and contractors joint and
several liability for the tax debts of the parties with whom
they enter into contracts who are not registered in Belgium,
the Kingdom of Belgium has failed to fulfil its obligations
under Articles 49 and 50 of the Treaty establishing the
European Community;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The national legislation in the construction sector which, on
pain of a fine, requires principals and contractors, whenever
they make payment to parties with whom they have entered
into a contract who are not registered in Belgium, to withhold
15 % of the amount billed and to pay it to the Belgian authori-
ties, in order to ensure that any tax debts of those parties are
paid or recovered, constitutes an obstacle to the freedom to
provide services as provided for in Articles 49 and 50 EC. The
joint and several liability of the principals and contractors for
the tax debts of the other parties to their contracts who are not
registered, which comes to as much as 35 % of the total cost of
the works, excluding VAT, likewise constitutes a breach of Arti-
cles 49 and 50 EC.

That legislation is such as to deter principals and contractors
from entering into contracts with parties not registered in
Belgium. The automatic application of joint and several liability
of the principals and contractors for the tax debts of the other
party to the contract does not comply with the principle of
proportionality and involves an unjustified breach of the right
to property and the rights of the defence of those principals
and contractors. The joint and several liability of principals and
the authorities having to
contractors is automatic, without
prove fault or complicity on the part of
the principal or
contractor. Also the liability may extend to tax debts relating to
works which the other party to the contract has carried out for
other persons. Breach of the obligation to withhold is penalised
by a fine of double the amount to be withheld.

4.12.2004

EN

Official Journal of the European Union

C 300/35

The legislation also constitutes a genuine obstacle for unregis-
tered parties who wish to offer their services in Belgium. They
must accept receiving the amount billed less 15 %, even if they
have no tax debt to which the amount withheld could be
applied, and they can recover that sum only after a certain
time, by applying for its restitution.

Those measures cannot be regarded as objectively justified. First
of all, in the majority of cases a person providing services who
is established in another Member State is not liable for the
taxes to which the legislation relates. Also, in specific situations
where tax debts would be payable or recoverable in Belgium,
the mechanism set up by the provisions must, because of its
general nature, be considered disproportionate.

Finally, the possibility of registration does not justify the obliga-
tion to withhold and the joint and several liability. The action
involved in the registration procedure, which goes far beyond
merely communicating information to the Belgian authorities,
means that registration is not a valid alternative for undertak-
ings not established in Belgium which wish to exercise their
freedom to offer their services in Belgium occasionally. The
requirement to register renders the Treaty provisions intended
to guarantee the freedom to provide services entirely redun-
dant.

Reference for a preliminary ruling by the Korkein oikeus
by order of that court of 6 October 2004 in the case of
Jan-Erik Anders Ahokainen and Mati Leppik against Viral-
linen syttäjä

(Case C-434/04)

(2004/C 300/66)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Korkein oikeus (Supreme
Court) (Finland)) of 6 October 2004, which was received at the
Court Registry on 11 October 2004, for a preliminary ruling in
the case of Jan-Erik Anders Ahokainen and Mati Leppik against
Virallinen syttäjä (Public Prosecutor).

The Korkein oikeus asks the Court of Justice to give a preli-
minary ruling on the following questions:

2. If the above question is answered in the affirmative, is the
licence system to be regarded as permitted under Article 30
EC?

Reference for a preliminary ruling by the Cour de cassa-
tion de Belgique by decision of that court of 6 October
2004 in the case of Sébastien Victor Leroy against
Ministère public

(Case C-435/04)

(2004/C 300/67)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Cour de cassation de
Belgique (Belgium Court of Cassation) of 6 October 2004
received at the Court Registry on 14 October 2004, for a preli-
minary ruling in the case of Sébastien Victor Leroy against
Ministère public on the following question:

Do Articles 49 to 55 of the Treaty of 25 March 1957 estab-
lishing the European Community preclude a national law of a
Member State which prohibits a person who resides and works
in that State from using in that State a vehicle which belongs
to a leasing company established in another Member State
when that vehicle has not been registered in the former State,
even if it has been in the latter?

Reference for a preliminary ruling by the Hof van Cassatie
van Belgie by decision of that court of 5 October 2004 in
the case of Léopold Henri Van Esbroeck against Openbaar
Ministerie

(Case C-436/01)

(2004/C 300/68)

1. Is Article 28 EC to be interpreted as precluding legislation
of a Member State under which non-denatured ethyl alcohol
of over 80 % (spirits) may be imported only by a person
who has obtained a licence to do so?

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Hof van Cassatie van Belgie
(Court of Cassation (Belgium)) of 5 October 2004, received at
the Court Registry on 13 October 2004, for a preliminary
ruling in the case of Léopold Henri Van Esbroeck against Open-
baar Ministerie on the following questions: