Joined Cases C-282/04 and C-283/04: Judgment of the Court (First Chamber) of 28 September 2006 — Commission of the European Communities v Kingdom of the Netherlands (Failure by a Member State to fulfil obligations — Articles 56(1) EC and 43 EC — Special shares ( golden shares ) of the Netherlands State in the companies KPN and TPG — Distinction between controlling holding , direct investment and portfolio investment in the context of fundamental freedoms — State measure for the purposes of fundamental freedoms — Guarantee of universal postal service)
Date: 2006-12-02
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, business management, company law, free movement of capital, government, postal and telecommunications services, right of establishment, shareholder

C 294/6

EN

Official Journal of the European Union

2.12.2006

4. Orders Technische Unie BV to pay the costs of these proceedings.
The costs relating to the proceedings at first instance which gave
rise to the judgment of 16 December 2003 in Joined Cases T-
5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de
Groothandel op Elektrotechnisch Gebied and Technische Unie v
Commission remain payable by Technische Unie BV, in accord-
ance with the procedure laid down in paragraph 3 of the operative
part of that judgment.

(1) OJ C 106, 30.04.2004.

Judgment of the Court (First Chamber) of 5 October 2006
— Commission of the European Communities v Kingdom
of Belgium

94/728/EC, Euratom on the system of the Communities' own
resources the entitlements established within the prescribed periods,

by failing to verify whether, since 1 January 1995, other delays in
making own resources available occurred following a late entry in
the accounts referred to in Article 6(3)(a) of Regulation No
1150/2000, by destroying the records covering that period and
by failing to inform the Commission of those delays in order to
enable it to calculate the default interest owing in terms of Article
11 of that regulation due to a delay in making own resources
available,

the Kingdom of Belgium has failed to fulfil its obligations under
Articles 3, 6, 9, 10 and 11 of Regulation No 1150/2000
which, with effect from 31 May 2000, repealed and replaced
Council Regulation (EEC, Euratom) No 1552/89 of 29 May
1989 implementing Decision 88/376/EEC, Euratom on the
system of the Communities' own resources, the purpose of which is
the same, and Article 10 EC;

2. Orders the Kingdom of Belgium to pay the costs;

(Case C-275/04) (1)

3. Orders

the United Kingdom of Great Britain and Northern

(Failure of a Member State to fulfil obligations — External
Community transit — Regulations (EEC) No 2913/92 and
No 2454/93 — Communities' own resources — Making
available — Time-limits — Default interest — Failure to
keep and communicate supporting documents relating to the
establishment and making available of own resources)

(2006/C 294/09)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Giolito and G. Wilms, Agents)

Defendant: Kingdom of Belgium (represented by: E. Dominko-
vits and M. Wimmer, Agents)

Intervener in support of the defendant: United Kingdom of Great
Britain and Northern Ireland (represented by C. Jackson, Agent,
and M. Angiolini and R. Anderson, Barristers

Re:

Failure of a Member State to fulfil obligations — Articles 6, 9,
10 and 11 of Council Regulation (EC, Euratom) No 1150/2000
of 22 May 2000 implementing Decision 94/728/EC, Euratom
on the system of the Communities' own resources (OJ 2000 L
130, p. 1), which, as from 31 May 2000, repealed and replaced
Council Regulation (EEC, Euratom) No 1552/89 of 29 May
1989 implementing Decision 88/376/EEC, Euratom on the
system of the Communities' own resources (OJ 1989 L 155, p.
1) — Anomalies and delays found in the accounting entries of
own resources.

Ireland to bear its own costs.

(1) OJ C 217, 28.08.2004.

Judgment of the Court (First Chamber) of 28 September
2006 — Commission of the European Communities v
Kingdom of the Netherlands

(Joined Cases C-282/04 and C-283/04) (1)

(Failure by a Member State to fulfil obligations — Articles
56(1) EC and 43 EC — Special shares (‘golden shares’) of
the Netherlands State in the companies KPN and TPG —
Distinction between ‘controlling holding’, ‘direct investment’
and ‘portfolio investment’ in the context of fundamental free-
doms — ‘State measure’ for the purposes of fundamental
freedoms — Guarantee of universal postal service)

(2006/C 294/10)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk, A Nijenhuis and S. Noë, acting as
Agents)

Defendant: Kingdom of the Netherlands (represented by: H.G.
Sevenster, J.G.M. van Bakel and M. De Grave, acting as Agents)

Operative part of the judgment

The Court:

Re:

1. Declares that by failing to enter in the accounts referred to in
Article
Euratom)
No 1150/2000 of 22 May 2000 implementing Decision

Regulation

Council

6(3)(a)

(EC,

of

Failure by a Member State to fulfil obligations — Articles 43
and 56 EC — Rights attached to the Netherlands State's special
share in the company Koninklijke KPN NV

2.12.2006

EN

Official Journal of the European Union

C 294/7

Operative part of the judgment

1. By maintaining in the statutes of KPN NV and TPG NV certain
provisions, providing that the capital of those companies is to
include a special share held by the Netherlands State, which
confers on the latter special rights to approve certain management
decisions of the organs of those companies, which are not limited
to cases where the intervention of that State is necessary for over-
riding reasons in the general interest recognised by the Court and,
in the case of TPG NV in particular for ensuring the maintenance
of universal postal service, the Kingdom of the Netherlands has
failed to fulfil its obligations under Article 56(1) EC.

2. The Kingdom of the Netherlands is ordered to pay the costs.

(1) OJ C 217 of 28.08.2004

Judgment of the Court (Grand Chamber) of 3 October
2006 (reference for a preliminary ruling from the Bundes-
(Germany)) — FKP Scorpio Konzertproduk-
finanzhof

tionen GmbH v Finanzamt Hamburg-Eimsbüttel

(Case C-290/04) (1)

(Article 59 of the EEC Treaty (later Article 59 of the EC
Treaty, now, after amendment, Article 49 EC) and Article 60
of the EEC Treaty (later Article 60 of the EC Treaty, now
Article 50 EC) — Tax legislation — Income tax — Provision
of services by a non-resident in the context of artistic perfor-
mances — Principle of retention of tax at source — Provider
of services not possessing the nationality of a Member State)

(2006/C 294/11)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: FKP Scorpio Konzertproduktionen GmbH

Defendant: Finanzamt Hamburg-Eimsbüttel

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
pretation of Article 59 of the EC Treaty (now, after amend-

ment, Article 49 EC) and Article 60 of the EC Treaty (now
Article 50 EC) — National income tax legislation under which
a resident recipient of a service is obliged to deduct tax on
remuneration paid to a non-resident provider of services

Operative part of the judgment

1) Articles 59 and 60 of the EEC Treaty must be interpreted as not

precluding

— national legislation under which a procedure of retention of
tax at source is applied to payments made to providers of
services not resident in the Member State in which the services
are provided, whereas payments made to providers of services
resident in that Member State are not subject to such a reten-
tion;

— national legislation under which liability is incurred by a reci-
pient of services who has failed to make the retention at source
that he was required to make.

2) Articles 59 and 60 of the EEC Treaty must be interpreted as

— precluding national legislation which does not allow a reci-
pient of services who is the debtor of the payment made to a
non-resident provider of services to deduct, when making the
retention of tax at source, the business expenses which that
service provider has reported to him and which are directly
linked to his activity in the Member State in which the services
are provided, whereas a provider of services residing in that
State is taxable only on his net income, that is, the income
received after deduction of business expense;

— not precluding national legislation under which only the busi-
ness expenses directly linked to the activity that generated the
taxable income in the Member State in which the service is
provided, which the service provider established in another
Member State has
reported to the payment debtor, are
deducted in the procedure for retention at source, and expenses
that are not directly linked to that economic activity can be
taken into account if appropriate in a subsequent refund proce-
dure;

— not precluding a rule that the tax exemption granted under
the Convention of 16 June 1959 between the Federal Republic
of Germany and the Kingdom of
the Netherlands for the
avoidance of double taxation in the area of income, capital,
and various other taxes and for regulating other tax matters,
to a non-resident provider of services who has carried on
activity in Germany can be taken into account by the payment
debtor in the procedure for retention of tax at source, or in a
subsequent procedure for exemption or refund, or in proceed-
ings for liability brought against him, only if a certificate of
exemption stating that the conditions laid down to that end
by that convention are satisfied is issued by the competent tax
authority.