Case C-433/04: Judgment of the Court (First Chamber) of 9 November 2006 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Articles 49 EC and 50 EC — Freedom to provide services — Activities in the construction sector — Prevention of tax fraud in the construction sector — National legislation requiring the withholding of 15 % on payments to contracting partners not registered in Belgium — National legislation imposing joint and several liability for the tax debts of contracting partners not registered in Belgium)
Date: 2006-12-30
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, agency abroad, building industry, contract, debt, freedom to provide services, liability, tax system

30.12.2006

EN

Official Journal of the European Union

C 326/5

Operative part of the judgment

Operative part of the judgment

Examination of the first question has disclosed nothing capable of
affecting the validity of Council Regulation (EEC) No 1785/81 of 30
June 1981 on the common organisation of the markets in the sugar
sector, as amended by Council Regulation (EEC) No 305/91 of 4
February 1991, or of Commission Regulation (EEC) No 2670/81 of
14 September 1981 laying down detailed implementing rules in
respect of sugar production in excess of the quota, as amended by
Commission Regulation (EEC) No 3559/91 of 6 December 1991.

(1) OJ C 217, 28.08.2004.

The Court:

1. Declares that, by failing to take into account

the professional
experience and seniority gained in the exercise of a comparable
activity within the public administration of another Member State
by a Community worker employed in the Italian civil service, the
Italian Republic has failed to fulfil its obligations under Article 39
EC and Article 7(1) of Regulation (EEC) No 1612/68 of the
Council of 15 October 1968 on freedom of movement for workers
within the Community;

2. Dismisses the action as to the remainder;

3. Orders the Italian Republic to pay the costs.

Judgment of the Court (Second Chamber) of 26 October
the European Communities v
2006 — Commission of

(1) OJ C 273, 06.11.2004.

Italian Republic

(Case C-371/04) (1)

(Failure of a Member State to fulfil obligations — Freedom of
movement for workers — Post in the civil service — Failure to
take account of professional experience and seniority gained in
other Member States — Articles 10 EC and 39 EC — Article
7(1) of Regulation (EEC) No 1612/68)

Judgment of the Court (First Chamber) of 9 November
the European Communities v
2006 — Commission of

Kingdom of Belgium

(2006/C 326/10)

Language of the case: Italian

Parties

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

Defendant:
Agent, and G. Albenzio, avvocato dello Stato)

Italian Republic (represented by:

I.M. Braguglia,

(Case C-433/04) (1)

(Failure of a Member State to fulfil obligations — Articles 49
EC and 50 EC — Freedom to provide services — Activities in
the construction sector — Prevention of tax fraud in the
construction sector — National legislation requiring the with-
holding of 15 % on payments to contracting partners not
registered in Belgium — National legislation imposing joint
and several liability for the tax debts of contracting partners
not registered in Belgium)

(2006/C 326/11)

Language of the case: French

Re:

Parties

Failure of a Member State to fulfil obligations — Articles 10 EC
and 39 EC and Article 7(1) of Regulation (EEC) No 1612/68 of
the Council of 15 October 1968 on freedom of movement for
workers within the Community (OJ, English Special Edition,
1968 (II) p. 475) — Employees of the Italian public service —
the professional experience and
Failure to take account of
seniority acquired in another Member State

Applicant: Commission of the European Communities (repre-
sented by: D. Triantafyllou, Agent)

Defendant: Kingdom of Belgium (represented by: E. Dominkovits,
Agent, and by B. van de Walle de Ghelcke, avocat,)

C 326/6

EN

Official Journal of the European Union

30.12.2006

Re:

Failure of a Member State to fulfil obligations — Breach of Arti-
cles 49 EC and 50 EC — National legislation requiring princi-
pals and contractors, on pain of a fine, to withhold 15 % of the
amount billed by contracting partners not registered in Belgium
and to pay the sum withheld to the Belgian authorities, in order
to ensure that the tax debts of those contracting partners are
paid — Joint and several liability of principals and contractors
for the tax debts of their contracting partners who are not regis-
tered

Operative part of the judgment

The Court:

1. Declares that, by obliging principals and contractors who have
recourse to foreign contracting partners not registered in Belgium to
withhold 15 % of the sum payable for work carried out and by
imposing on those principals and contractors joint and several liabi-
lity for the tax debts of such contracting partners, the Kingdom of
Belgium has failed to fulfil its obligations under Articles 49 EC
and 50 EC;

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

(1) OJ C 300, 04.12.2004.

Judgment of the Court (Grand Chamber) of 14 November
2006 (reference
a preliminary ruling from the
Rechtbank van eerste aanleg te Gent (Belgium)) — Mark
Kerckhaert, Bernadette Morres v Belgische Staat

for

(Case C-513/04) (1)

(Income tax — Dividends — Tax burden on dividends from
shareholdings in companies established in another Member
State — No possibility in the State of residence to set off
income tax levied at source in another Member State)

(2006/C 326/12)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Gent

Parties to the main proceedings

Applicants: Mark Kerckhaert, Bernadette Morres

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Rechtbank van eerste
aanleg te Gent — Interpretation of Article 56(1) EC — Restric-

tion resulting from a national income tax provision — Domestic
and foreign dividends — Uniform tax rate — Tax burden higher
in regard to dividends from shareholdings in companies estab-
lished in another Member State — Taxation at source — Not
taken into account — Free movement of capital — Discrimina-
tion

Operative part of the judgment

Article 73b(1) of the EC Treaty (now Article 56(1) EC) does not
preclude legislation of a Member State, such as Belgian tax legislation,
which, in the context of tax on income, makes dividends from shares
in companies established in the territory of that State and dividends
from shares in companies established in another Member State subject
to the same uniform rate of taxation, without providing for the possi-
bility of setting off tax levied by deduction at source in that other
Member State.

(1) OJ C 57, 5.3.2005.

Judgment of the Court (First Chamber) of 9 November
2006 (reference for a preliminary ruling from the Korkein
hallinto-oikeus — Finland) — Pirkko Marjatta Turpeinen

(Case C-520/04) (1)

(Freedom of movement for persons — Income tax — Retire-
ment pension — Higher rate of tax for retired persons
residing in another Member State)

(2006/C 326/13)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Pirkko Marjatta Turpeinen

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus —
Interpretation of Articles 12 EC and 39 EC and of Council
Directive 90/365/EEC of 28 June 1990 on the right of residence
for employees and self-employed persons who have ceased their
occupational activity (OJ 1990 L 180, p. 28) — National legisla-
tion under which the income of non-residents is subject to a
withholding tax — Pension paid to a retired person resident in
another Member State subject to a higher rate of tax than if that
person had been resident in the Member State concerned