Judgment of the Court (Grand Chamber) of  15 November 2005  in Case C-320/03: Commission of the European Communities v Republic of Austria (Failure by a Member State to fulfil its obligations — Articles 28 EC to 30 EC — Free movement of goods — Articles 1 and 3 of Regulation (EEC) No 881/92 — Articles 1 and 6 of Regulation (EEC) No 3118/93 — Transport — Sectoral prohibition on the movement of lorries of more than 7.5 tonnes carrying certain goods — Air quality — Protection of health and the environment — Proportionality principle)
Date: 2006-02-11
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, carriage of goods, commercial vehicle, common transport policy, free movement of goods, road transport, transport regulations

C 36/4

EN

Official Journal of the European Union

11.2.2006

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Second Chamber)

of 1 December 2005

(Grand Chamber)

of 15 November 2005

in Case C-301/03: Italian Republic v Commission of the
European Communities (1)

(Structural funds — Eligibility of expenditure — Amend-
ments to programme complements — Inadmissibility)

in Case C-320/03: Commission of the European Commu-
nities v Republic of Austria (1)

(Failure by a Member State to fulfil its obligations — Arti-
cles 28 EC to 30 EC — Free movement of goods — Articles 1
and 3 of Regulation (EEC) No 881/92 — Articles 1 and 6 of
Regulation (EEC) No 3118/93 — Transport — Sectoral
prohibition on the movement of lorries of more than 7.5
tonnes carrying certain goods — Air quality — Protection of
health and the environment — Proportionality principle)

(2006/C 36/06)

(2006/C 36/07)

(Language of the case: Italian)

(Language of the case: German)

In Case C-301/03: Italian Republic (Agent:
I.M. Braguglia,
assisted by G. Aiello and A. Cingolo, avvocati dello Stato) v
Commission of the European Communities (Agents: E. de
March and L. Flynn, assisted by A. Dal Ferro, avvocato),
ACTION for annulment under Article 230 EC, brought on 2
July 2003 — the Court
(Second Chamber), composed of
C.W.A. Timmermans (Rapporteur), President of the Chamber,
C. Gulmann, R. Schintgen, G. Arestis and J. Klučka, Judges; F.G.
Jacobs, Advocate General; L. Hewlett, Principal Administrator,
for the Registrar, has given a judgment on 1 December 2005,
in which it:

1. Dismisses the action as inadmissible;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 226 of 20.9.2003.

lawyer),

In Case C-320/03, Commission of the European Communities
(Agents: C. Schmidt, W. Wils and G. Braun), supported by
Federal Republic of Germany (Agents: W.-D. Plessing and A.
Tiemann, assisted by T. Lübbig,
Italian Republic
(Agent: I.M. Braguglia, assisted by G. De Bellis, Avvocato dello
Stato), Kingdom of the Netherlands, (Agent: H.G. Sevenster) v
Republic of Austria (Agents: E. Riedl and H. Dossi) — Action
under Article 226 EC for failure to fulfil obligations, brought
on 24 July 2003 — the Court (Grand Chamber), composed of
V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas
and K. Schiemann, Presidents of Chambers, R. Schintgen
(Rapporteur), J.N. Cunha Rodrigues, R. Silva de Lapuerta, K.
Lenaerts, P. Kūris, E. Juhász, G. Arestis and A. Borg Barthet,
Judges; L.A. Geelhoed, Advocate General; K. Sztranc, Adminis-
trator, for the Registrar, gave a judgment on 15 November
2005, the operative part of which is as follows:

1. By prohibiting lorries of over 7.5 tonnes, carrying certain goods,
from driving on a section of the A 12 motorway in the Inn valley,
following the adoption of the Regulation of the First Minister of
the Tyrol limiting transport on the A 12 motorway in the Inn
valley (sectoral prohibition on road transport) [Verordnung des
Landeshauptmanns von Tirol, mit der auf der A 12 Inntalauto-
erlassen werden
bahn
(sektorales Fahrverbot)], of 27 May 2003,
the Republic of
Austria has failed to fulfil its obligations under Articles 28 EC
and 29 EC.

verkehrsbeschränkende Maßnahmen

2. The remainder of the application is dismissed.

11.2.2006

EN

Official Journal of the European Union

C 36/5

3. The Republic of Austria is ordered to pay the costs.

such registration is possible, on compliance with certain conditions,
where the two companies participating in the merger are both estab-
lished in the territory of the first Member State.

4. The Federal Republic of Germany, the Italian Republic and the
Kingdom of the Netherlands are ordered to bear their own costs.

(1) OJ C 289, 29.11.2003.

(1) OJ C 226, 20. 9.2003.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Grand Chamber)

(Grand Chamber)

of 13 December 2005

of 13 December 2005

in Case C-411/03, Reference for a preliminary ruling from
the Landgericht Koblenz in proceedings against SEVIC
Systems AG (1)

in Case C-446/03, Reference for a preliminary ruling from
the High Court of Justice of England and Wales, Chancery
Division Marks & Spencer plc v David Halsey (Her Majes-
ty's Inspector of Taxes) (1)

(Freedom of establishment — Articles 43 EC and 48 EC —
registration in the
Cross-border mergers — Refusal of

national commercial register — Compatibility)

(Articles 43 EC and 48 EC — Corporation tax — Groups of
companies — Tax relief — Profits of parent companies —
Deduction of losses incurred by a resident subsidiary —
Allowed — Deduction of losses incurred in another Member
State by a non-resident subsidiary — Not included)

(2006/C 36/08)

(Language of the case: German)

(2006/C 36/09)

In Case C-411/03: reference for a preliminary ruling under
Article 234 EC from the Landgericht Koblenz (Germany), made
by decision of 16 September 2003, received at the Court on 2
October 2003, in proceedings against SEVIC Systems AG —
the Court (Grand Chamber) composed of V. Skouris, President,
P.
Jann, C.W.A. Timmermans, A. Rosas and K. Schiemann,
Presidents of Chambers; C. Gulmann (Rapporteur), J.N. Cunha
Rodrigues, R. Silva de Lapuerta, K. Lenaerts, P. Kūris, E. Juhász,
G. Arestis and A. Borg Barthet Judges; A. Tizzano, Advocate
General; L. Hewlett, Principal Administrator, for the Registrar,
gave a judgment on 13 December 2005, the operative part of
which is as follows:

Articles 43 EC and 48 EC preclude registration in the national
commercial register of the merger by dissolution without liquidation of
one company and transfer of
its assets to another
company from being refused in general in a Member State where one
of the two companies is established in another Member State, whereas

the whole of

(Language of the case: English)

In Case C-446/03: reference for a preliminary ruling under
Article 234 EC from the High Court of Justice of England and
Wales, Chancery Division (United Kingdom), made by decision
of 16 July 2003, received at the Court on 22 October 2003, in
the proceedings between Marks & Spencer plc and David
Halsey (Her Majesty's Inspector of Taxes) — the Court (Grand
Chamber), composed of V. Skouris, President of the Chamber,
P.
Jann, C.W.A. Timmermans and A. Rosas, Presidents of
Chambers, C. Gulmann (Rapporteur), A. La Pergola, J. P. Puisso-
chet, R. Schintgen, N. Colneric, J. Klučka, U. Lõhmus, E. Levits
Judges; M. Poiares Maduro, Advocate
and A. Ó Caoimh,
General; K. Sztranc, Administrator, for the Registrar, gave a
judgment on 13 December 2005, the operative part of which
is as follows: