Case C-195/06: Reference for a preliminary ruling from the Bundeskommunikationssenats (Austria) lodged on  27 April 2006  — Österreichischer Rundfunk (ORF)
Date: 2006-07-29
Institutions: Court of Justice
Subjects: advertising, audiovisual programme, distance selling, game of chance, interpretation of the law

C 178/16

EN

Official Journal of the European Union

29.7.2006

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: Orange European Smallcap Fund NV

Question(s) referred

1. Must Article 56 EC, in conjunction with Article 58(1) EC,
be interpreted as meaning that the prohibition in Article 56
EC is incompatible with a rule in a Member State under
which — for the reasons set out in at the end of section
5.2.1 of this judgment — a concession to be granted to a
fiscal investment enterprise on account of taxation at source
deducted in another Member State from dividends received
by the fiscal investment enterprise is restricted:

(a) to the amount which a natural person resident in the
Netherlands could have had credited on the basis of a
tax treaty concluded with the other Member State;

(b) where and to the extent to which the shareholders of
the fiscal investment enterprise are not natural persons
resident in the Netherlands or bodies subject to Nether-
lands corporation tax?

2. If the answer to Question 1 is wholly or partly in the affir-

mative:

(a) Does ‘direct investment’ in Article 57(1) EC also include
the holding of a block of shares in a company if the
holder of the shares holds them only as an investment
and the size of the block does not put the holder in a
position to exercise a decisive influence over
the
management or control of the company?

(b) Under Article 56 EC, is any restriction of the movement
of capital connected with the levying of tax that would
be impermissible if it related to cross-border movement
of capital within the EC similarly impermissible in the
case of the same movement of capital — in otherwise
similar circumstances — to and from third countries?

(c) If the answer to Question 2(b) is in the negative, must
Article 56 EC then be interpreted as meaning that a
restriction by a Member State of a tax concession
granted to a fiscal investment enterprise with regard to
taxation at source of a dividend received from a third
country, that restriction being based on the fact that not
all shareholders of the fiscal investment enterprise have
their place of residence in the Member State concerned,
is incompatible with that article?

3. Is the answer to the above questions affected by whether:

(a) the tax deducted in another country from the dividend
received from that country is higher than the tax on the
payment of that dividend to foreign shareholders in the

Member State of establishment of the fiscal investment
enterprise;

(b) the shareholders of the fiscal investment enterprise who
have their place of residence outside the Member State
of establishment of the fiscal investment enterprise are
resident or established in a country with which the
above-mentioned Member State has a treaty providing
for reciprocal credit of taxation of dividends at source;

(c) the shareholders of the fiscal investment enterprise who
have their place of residence outside the Member State
of establishment of the fiscal investment enterprise are
resident or established in another country of the EC?

Reference for a preliminary ruling from the Bundeskom-
munikationssenats (Austria) lodged on 27 April 2006 —
Österreichischer Rundfunk (ORF)

(Case C-195/06)

(2006/C 178/26)

Language of the case: German

Referring court

Bundeskommunikationssenats (Austria)

Party to the main proceedings

Österreichischer Rundfunk (ORF)

Questions referred

1. Should Article 1(f) of Council Directive 89/552/EEC (1) of 3
October 1989 on the coordination of certain provisions laid
down by law, regulation or administrative action in Member
States concerning the pursuit of
television broadcasting
in the version of Directive 97/36/EC (2) of the
activities,
European Parliament and of the Council of 30 June 1997
amending Council Directive 89/552/EEC on the coordina-
tion of certain provisions laid down by law, regulation or
administrative action in Member States concerning the
pursuit of television broadcasting activities be interpreted to
the effect that ‘teleshopping’ includes broadcasts or parts of
broadcasts in which the broadcaster offers viewers the
opportunity to participate in the broadcaster's prize games
by means of immediately dialling premium rate telephone
numbers, and thus in return for payment?

29.7.2006

EN

Official Journal of the European Union

C 178/17

2. In the event that the answer to that question is no: should
Article 1(c) of Council Directive 89/552/EEC of 3 October
1989 on the coordination of certain provisions laid down
by law, regulation or administrative action in Member States
concerning the pursuit of television broadcasting activities,
in the version of Directive 97/36/EC of the European Parlia-
ment and of
the Council of 30 June 1997 amending
Council Directive 89/552/EEC on the coordination of
certain provisions laid down by law, regulation or adminis-
trative action in Member States concerning the pursuit of
television broadcasting activities, be interpreted to the effect
that
in
broadcasts or parts of broadcasts where the broadcaster
offers viewers the opportunity to participate in the broad-
caster's prize games by means of
immediately dialling
premium rate telephone numbers, and thus in return for
payment?

includes announcements

‘television advertising’

(1) OJ 298, p. 23.
(2) OJ 202, p. 60.

— if considered appropriate, refer the case back to the Court

of First Instance for judgment;

— order the Commission to pay the costs, including the costs

incurred by eventual intervening parties.

Pleas in law and main arguments

The appellant maintains that the Court of First Instance in its
judgement of 23 February 2006:

a. misinterpreted and misapplied Articles 1, 2 and 3(1) of the
Council Regulation (EEC) No 4064/89 of 21 December
1989 on the control of concentrations between undertak-
ings, as amended by Regulation (EC) No. 1310/97 (the
Merger Regulation) (1) and:

b. violated the principle of proportionality and misinterpreted

and misapplied Article 8(2) of the Merger Regulation;

which led it wrongly to dismiss the Appellant's application and
to uphold the decision of the Commission in so far as it
rejected the first set of commitments offered by the Appellant
and Haniel as insufficient.

Appeal brought on 4 May 2006 by Cementbouw Handel
& Industrie BV against the judgement of the Court of First
Instance (Fourth Chamber, Extended Composition) deliv-
ered on 23 February 2006 in Case T-282/02: Cementbouw
Handel & Industrie B.V. v Commission of the European
Communities

(1) OJ L 180, p. 1.

(Case C-202/06 P)

(2006/C 178/27)

Language of the case: English

Reference for a preliminary ruling from the Rechtbank
Groningen (Netherlands) lodged on 2 May 2006 — Essent
Netwerk Noord BV v Aluminium Delfzijl BV, Essent
Netwerk Noord BV v 1. Saranne BV, and 2. BV Nederlands
Elektriciteit Administratiekantoor, and Aluminium Delfzijl
BV v State of the Netherlands (Ministry of Economic
Affairs)

Parties

Appellant: Cementbouw Handel & Industrie BV (represented by:
W. Knibbeler, O. Brouwer and P.J. Kreijger, lawyers)

Other party to the proceedings: Commission of the European
Communities

Referring court

(Case C-206/06)

(2006/C 178/28)

Language of the case: Dutch

Form of order sought

The applicant claims that the Court should:

— set aside the judgement of the Court of First Instance of 23

February 2006 by which it:

a) dismissed the action brought by the Appellant

b) ordered the Appellant to pay the costs of the proceed-

ings

Rechtbank Groningen

Parties to the main proceedings

Claimant: Essent Netwerk Noord B.V.

Defendant: Aluminium Delfzijl B.V.

Other parties: B.V. Nederlands Elektriciteit Administratiekantoor,
Saranne BV, BV Nederlands Elektriciteit Administratiekantoor,
State of the Netherlands (Ministry for Economic Affairs)