Case C-484/04: Judgment of the Court (Third Chamber) of 7 September 2006 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Social policy — Protection of the health and safety of workers — Directive 93/104/EC — Organisation of working time — Article 17(1) — Derogation — Articles 3 and 5 — Right to minimum daily and weekly rest periods)
Date: 2006-10-28
Institutions: Court of Justice
Subjects: European Commission, United Kingdom, action for failure to fulfil an obligation, arrangement of working time, derogation from EU law, rest period, working time

28.10.2006

EN

Official Journal of the European Union

C 261/3

Parties to the main proceedings

Applicant: N

Inspecteur van de Belastingdienst Oost/kantoor

Defendant:
Almelo

Re:

Judgment of the Court (Third Chamber) of 7 September
2006 — Commission of the European Communities v
United Kingdom of Great Britain and Northern Ireland

(Case C-484/04) (1)

(Failure of a Member State to fulfil obligations — Social
policy — Protection of the health and safety of workers —
Directive 93/104/EC — Organisation of working time —
Article 17(1) — Derogation — Articles 3 and 5 — Right to
minimum daily and weekly rest periods)

Reference for a preliminary ruling from the Gerechtshof te
Arnhem — Free movement of persons — Freedom of establish-
ment — Tax charge resulting from the transfer of residence to
another Member State — Pursuit of an economic activity in the
latter state — Income tax on the basis of deemed profit from
the sale of a substantial shareholding in a company — Provi-
sion of a guarantee in order to obtain deferment of payment —
Articles 18 EC and 43 EC

Parties

(2006/C 261/05)

Language of the case: English

Operative part of the judgment

The Court:

1. A Community national,

in the main
proceedings, who has been living in one Member State since the
transfer of his residence and who holds all the shares of companies
established in another Member State, may rely on Article 43 EC.

the applicant

such as

2. Article 43 EC must be interpreted as precluding a Member State
from establishing a system for taxing increases in value in the case
of a taxpayer's transferring his residence outside that Member
State, such as the system at issue in the main proceedings, which
makes the granting of deferment of the payment of that tax condi-
tional on the provision of guarantees and does not
take full
account of reductions in value capable of arising after the transfer
of residence by the person concerned and which were not taken
into account by the host Member State.

3. An obstacle arising from a requirement, in breach of Community
law, that a guarantee be constituted cannot be raised with retroac-
tive effect merely by releasing that guarantee. The form of the
document on the basis of which the guarantee was released is
immaterial
to that assessment. Where a Member State makes
provision for the payment of interest on arrears where a guarantee
demanded in breach of national law is released, such interest is
also due in the case of an infringement of Community law. More-
over, it is for the national court to assess, in accordance with the
guidelines provided by the Court of Justice and in compliance with
the principles of equivalence and effectiveness, whether the Member
State is liable on account of the damage caused by the obligation
to constitute such a guarantee.

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and N. Yerrell, Agents)

Defendant: United Kingdom of Great Britain and Northern
Ireland (represented by: M. Bethell and E. O'Neill, Agents, and
K. Smith, Barrister)

Re:

Failure by a Member State to fulfil obligations — Breach of
Article 17(1) of Council Directive 93/104/EC of 23 November
1993 concerning certain aspects of the organisation of working
time (OJ 1993 L 307, p. 18) — Scope of the derogation —
Implementation of provisions relating to rest periods

Operative part of the judgment

The Court:

1. Declares that, by applying the derogation provided for in Article
17(1) of Council Directive 93/104/EC of 23 November 1993
concerning certain aspects of the organisation of working time, as
amended by Directive 2000/34/EC of the European Parliament
and of the Council of 22 June 2000, to workers whose working
time is partially not measured or predetermined or can be deter-
mined partially by the worker himself and by failing to adopt the
measures necessary to implement the rights of workers to daily and
weekly rest, the United Kingdom of Great Britain and Northern
Ireland has failed to fulfil its obligations under Articles 17(1), 3
and 5 of that directive;

2. Orders

the United Kingdom of Great Britain and Northern

Ireland to pay the costs.

(1) OJ C 31, 05.02.2005.

(1) OJ C 31, 5. 2. 2005.