Case C-413/06 P: Appeal brought on 10 October 2006 by Bertelsmann AG, Sony Corporation of America against the judgment of the Court of First Instance (Third Chamber) delivered on 13 July 2006 in Case T-464/04: Independent Music Publishers and Labels Association (Impala, international association) v Commission of the European Communities.
Date: 2006-12-30
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), Internet, appeal, distributive trades, dominant position, economic concentration, music, patents licence, restrictive-practice authorisation

30.12.2006

EN

Official Journal of the European Union

C 326/25

Reference for a preliminary ruling from the Finanzgericht
Düsseldorf (Germany) lodged on 14 September 2006 —
BATIG Gesellschaft für Beteiligungen mbH v Hauptzollamt
Bielefeld

Defendant: Mayor of Bergheim

Questions referred

(Case C-374/06)

(2006/C 326/49)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: BATIG Gesellschaft für Beteiligungen mbH

Defendant: Hauptzollamt Bielefeld

Question referred

Should Council Directive 92/12/EEC (1) of 25 February 1992
on the general arrangements for products subject to excise duty
such
and on the holding, movement and monitoring of
products be interpreted as meaning that a Member State which
has collected excise duty for manufactured tobacco by means of
issuing tax markings is obliged to reimburse the recipient of the
tax markings for
them if manufactured
tobacco furnished with those tax markings in another Member
State departs from the duty suspension arrangement irregularly
with the consequence that
the latter Member State collects
excise duty for the manufactured tobacco from the trader estab-
lished there who dispatched the manufactured tobacco under
intra-community duty-suspension arrangements ?

the sum paid for

(1) OJ 1992 L 76, p. 1.

Reference for a preliminary ruling from the Verwaltungs-
gericht Köln (Germany) lodged on 9 October 2006 —
Winner Wetten GmbH v Mayor of Bergheim

(Case C-409/06)

(2006/C 326/50)

1. Are Article 43 EC and Article 49 EC to be interpreted as
meaning that national rules governing a State monopoly on
sports betting, which contain impermissible restrictions on
the freedom of establishment and the freedom to provide
services enshrined in Article 43 EC and Article 49 EC, inas-
much as they do not serve to limit betting activities in a
consistent and systematic manner within the terms of the
Court's case-law (judgment in Case C-243/01 Gambelli and
Others [2003] ECR-13031), may still continue to apply for a
transitional period on an exceptional basis, notwithstanding
the primacy of directly applicable Community law?

2. If Question 1 is to be answered in the affirmative: what
conditions need to be met for the purpose of derogating
from that primacy and how is the transitional period to be
determined?

Appeal brought on 10 October 2006 by Bertelsmann AG,
Sony Corporation of America against the judgment of the
Court of First Instance (Third Chamber) delivered on 13
July 2006 in Case T-464/04: Independent Music Publishers
and Labels Association (Impala, international association) v
Commission of the European Communities.

(Case C-413/06 P)

(2006/C 326/51)

Language of the case: English

Parties

Appellants: Bertelsmann AG, Sony Corporation of America
J. Boyce, Solicitors, N. Levy,
(represented by: P. Chappatte,
Barrister, R. Snelders, avocat, T. Graf, Rechtsanwalt)

Other parties to the proceedings: Commission of the European
Communities, Independent Music Publishers and Labels Associa-
tion (Impala, association internationale), Sony BMG Music Enter-
tainment BV

Language of the case: German

Form of order sought

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

The applicant claims that the Court should:

— annul the judgment of the Court of First Instance of 13 July

2006 in Case T-464/04;

— reject Impala's application for annulment of the Commis-
sion's decision or, alternatively, refer the case back for recon-
sideration to the Court of First Instance; and

Applicant: Winner Wetten GmbH

— order Impala to pay the costs of the present proceedings.

C 326/26

EN

Official Journal of the European Union

30.12.2006

Pleas in law and main arguments

Question referred

The appellants make seven pleas on appeal:

First, that the Court of First Instance erred in law by using the
Commission's statement of objections as a benchmark for its
substantive assessment of the decision.

that

the Court of First

Second,
Instance erred in law by
requiring the Commission to conduct a new market investiga-
tion following the notifying parties' response to the statement of
objections.

Third, that the Court of First Instance erred in law by applying
an erroneous and excessively high standard of proof for merger
clearance decisions.

Fourth, that the Court if First Instance exceeded the scope of
judicial review by substituting its own assessment for that of the
Commission and, in doing so, itself committed manifest errors
and fundamentally misconstrued the evidence.

Fifth, that the Court of First Instance erred in law by misap-
plying the criteria developed in Airtours for the assessment of
the feasibility of tacit collusion.

Sixth, that the Court of First Instance erred in law by applying
an erroneous and excessive standard of reasoning for merger
clearance decisions.

Seventh, that the Court of First Instance erred in law by relying
on evidence that was not disclosed to the applicants and that
was not before the Commission at the time it adopted its deci-
sion.

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 11 October 2006 — Lidl
Belgium GmbH & Co. KG v Finanzamt Heilbronn

(Case C-414/06)

(2006/C 326/52)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Lidl Belgium GmbH & Co. KG

Defendant: Finanzamt Heilbronn

Is it compatible with Articles 43 EC and 56 EC for a German
company with income from industrial or commercial activities
to be precluded, when calculating its profits, from deducting
losses from a permanent establishment in another Member State
(here: Luxembourg) on the ground that, according to the applic-
able double taxation convention,
the corresponding income
from such a permanent establishment is not subject to taxation
in Germany?

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 11 October 2006 — Stahl-
werk Ergste Westig GmbH v Finanzamt Düsseldorf-Mett-
mann

(Case C-415/06)

(2006/C 326/53)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Stahlwerk Ergste Westig GmbH

Defendant: Finanzamt Düsseldorf-Mettmann

Questions referred

1. Is it compatible with Articles 56 EC and 58 EC for a
German company with income from industrial or commer-
cial activities to be precluded, when calculating its profits,
from deducting losses from a permanent establishment in a
non-member country (here: the United States) on the ground
that, according to the applicable double taxation convention,
the corresponding income from such a permanent establish-
ment is not subject to taxation in Germany?

2. Having regard to the proviso in Article 57(1) EC,

is a
convention provision with the above content compatible
with Community law if
the
double taxation convention already existed on 31 December
1993 but the exclusion of taking account of losses resulting
from those provisions had been removed up to 1998 by
domestic German law?

the applicable provisions of