Case C-470/04: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands)) — N v Inspecteur van de Belastingdienst Oost/kantoor Almelo (Freedom of movement for persons — Article 18 EC — Freedom of establishment — Article 43 EC — Direct taxation — Taxation of notional increases in value of substantial shareholdings where tax residence transferred to another Member State)
Date: 2006-10-28
Institutions: Court of Justice
Subjects: EU Member State, interpretation of the law, legal domicile, residence, tax on income, tax system, workplace

C 261/2

EN

Official Journal of the European Union

28.10.2006

Re:

Reference for a preliminary ruling — Tribunale di Genova —
Interpretation of Council Directive 1999/70/EC of 28 June
1999 concerning the framework agreement on fixed-term
work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175,
p. 43) — Establishment of employment relationships of indefi-
rules
nite duration resulting from infringement of
governing successive fixed-term contracts — Possible deroga-
tion in respect of employment contracts in the public sector

the

Operative part of the judgment

The framework agreement on fixed-term work concluded on 18
March 1999, which is annexed to Council Directive 1999/70/EC of
28 June 1999 concerning the framework agreement on fixed-term
work concluded by ETUC, UNICE and CEEP, must be interpreted as
not in principle precluding national legislation which, where there is
abuse arising from the use of successive fixed-term employment
contracts or relationships by a public-sector employer, precludes their
being converted into contracts of indeterminate duration, even though
such conversion is provided for in respect of employment contracts and
relationships with a private-sector employer, where that legislation
includes another effective measure to prevent and, where relevant,
punish the abuse of successive fixed-term contracts by a public-sector
employer.

(1) OJ C 156, 12.6.2004.

Parties to the main proceedings

Appellant: Fazenda Pública

Respondent: Organon Portuguesa — Produtos Químicos e Farm-
acêuticos Lda

Re:

Reference for a preliminary ruling — Supremo Tribunal
Administrativo — Interpretation of Articles 4(3), 10(c) and
12(1)(e) of Council Directive 69/335/EEC of 17 July 1969
concerning indirect taxes on the raising of capital (OJ, English
Special Edition, 1969(II), p. 412), as amended by Council Direc-
tive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) —
Compatibility with those provisions of fees payable for the
drawing-up of a notarially attested share transfer

Operative part of the judgment

Council Directive 69/335/EEC of 17 July 1969 concerning indirect
taxes on the raising of capital, as amended by Council Directive
85/303/EEC of 10 June 1985, does not preclude national legislation
which provides,
the drawing-up of a notarial act
recording a disposal of shares which is not linked to an increase in
capital, for the charging of fees which are fixed by reference to a flat
rate and/or the value of the shares being disposed of.

in respect of

(1) OJ C 156, 12.6.2004.

Judgment of the Court (First Chamber) of 7 September
2006 (reference for
a preliminary ruling from the
Supremo Tribunal Administrativo — Portugal) — Fazenda
Pública v Organon Portuguesa — Produtos Químicos e
Farmacêuticos Lda

Judgment of the Court (First Chamber) of 7 September
2006 (reference for a preliminary ruling from the Gerecht-
shof te Arnhem (Netherlands)) — N v Inspecteur van de
Belastingdienst Oost/kantoor Almelo

(Case C-193/04) (1)

(Case C-470/04) (1)

(Indirect

taxes on the

raising of

capital — Directive

69/335/EEC — Disposal of shares of a limited company)

(2006/C 261/03)

Language of the case: Portuguese

(Freedom of movement for persons — Article 18 EC —
Freedom of establishment — Article 43 EC — Direct taxa-
tion — Taxation of notional increases in value of substantial
shareholdings where tax residence transferred to another
Member State)

(2006/C 261/04)

Language of the case: Dutch

Referring court

Referring court

Supremo Tribunal Administrativo — Portugal

Gerechtshof te Arnhem (Netherlands)

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.