Case C-486/04: Judgment of the Court (Second Chamber) of 23 November 2006 — Commission of the European Communities v Italian Republic. (Failure of a Member State to fulfil obligations — Assessment of the effects of certain projects on the environment — Waste recovery — Installation for the production of electricity by the incineration of combustible materials derived from waste and biomass in Massafra (Taranto) — Directives 75/442/EEC and 85/337/EEC)
Date: 2006-12-30
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, environmental protection, industrial project, project evaluation, waste management

C 331/6

EN

Official Journal of the European Union

30.12.2006

3) Articles 43 EC and 56 EC do not preclude legislation of a
Member State which provides that any relief for tax paid abroad
made available to a resident company which has received foreign-
sourced dividends is to reduce the amount of corporation tax
against which that company may offset advance corporation tax.

set out in paragraph 51 of the judgment in Joined Cases C-46/93
and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR
I-1029, but that does not preclude the State from being liable
under less restrictive conditions, where national law so provides.

Article 43 EC precludes legislation of a Member State which
allows a resident company to surrender to resident subsidiaries the
amount of advance corporation tax paid which cannot be offset
against the liability of that company to corporation tax for the
current accounting period or previous or subsequent accounting
periods, so that those subsidiaries may offset it against their liabi-
lity to corporation tax, but does not allow a resident company to
surrender such an amount to non-resident subsidiaries where the
latter are taxable in that Member State on the profits which they
made there.

4) Articles 43 EC and 56 EC preclude legislation of a Member State
which, while exempting from advance corporation tax resident
companies paying dividends to their shareholders which have their
origin in nationally-sourced dividends received by them, allows resi-
dent companies distributing dividends to their shareholders which
have their origin in foreign-sourced dividends received by them to
elect to be taxed under a regime which permits them to recover the
advance corporation tax paid but, first, obliges those companies to
pay that advance corporation tax and subsequently to claim repay-
ment and, secondly, does not provide a tax credit for their share-
holders, whereas those shareholders would have received such a tax
credit in the case of a distribution made by a resident company
which had its origin in nationally-sourced dividends.

5) Article 57(1) EC is to be interpreted as meaning that where, before
31 December 1993, a Member State has adopted legislation
which contains restrictions on capital movements to or from non-
member countries which are prohibited by Article 56 EC and, after
that date, adopts measures which, while also constituting a restric-
tion on such movements, are essentially identical to the previous
legislation or do no more than restrict or abolish an obstacle to the
exercise of the Community rights and freedoms arising under that
previous legislation, Article 56 EC does not preclude the applica-
tion of those measures to non-member countries when they apply
to capital movements involving direct investment, including invest-
ment in real estate, establishment, the provision of financial services
or the admission of securities to capital markets. Holdings in a
company which are not acquired with a view to the establishment
lasting and direct economic links between the
or maintenance of
shareholder and that company and do not allow the shareholder to
participate effectively in the management of that company or in its
control cannot,
in this connection, be regarded as direct invest-
ments.

6) In the absence of Community legislation, it is for the domestic legal
system of each Member State to designate the courts and tribunals
having jurisdiction and to lay down the detailed procedural rules
governing actions for safeguarding rights which individuals derive
from Community law, including the classification of claims brought
by injured parties before the national courts and tribunals. Those
courts and tribunals are, however, obliged to ensure that individuals
should have an effective legal remedy enabling them to obtain reim-
bursement of the tax unlawfully levied on them and the amounts
paid to that Member State or withheld by it directly against that
tax. As regards other loss or damage which a person may have
sustained by reason of a breach of Community law for which a
Member State is liable, the latter is under a duty to make repara-
tion for the loss or damage caused to individuals in the conditions

(1) OJ C 6, 8.1.2005.

Judgment of the Court (Second Chamber) of 23 November
the European Communities v
2006 — Commission of

Italian Republic.

(Case C-486/04) (1)

(Failure of a Member State to fulfil obligations — Assessment
of the effects of certain projects on the environment — Waste
recovery — Installation for the production of electricity by the
incineration of combustible materials derived from waste and
biomass in Massafra (Taranto) — Directives 75/442/EEC and
85/337/EEC)

(2006/C 331/09)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. van Beek, Agent, A. Capobianco and F. Louis,
lawyers)

Defendant: Italian Republic (represented by: I.M. Braguglia, agent,
M. Fiorilli and G. Fiengo, lawyers)

Re:

Failure of a Member State to fulfil obligations — Article 2(1)
and Article 4(1), (2) and (3) of Council Directive 85/337/EEC of
27 June 1985 on the assessment of the effects of certain public
and private projects on the environment (OJ 1985 L 175, p.
40), as amended by Council Directive 97/11/EC of 3 March
1997 (OJ 1997 L 73, p. 5) — Installation for the production of
electricity by the incineration of combustible material derived
from waste and biomass at Massafra (Taranto)

Operative part of the judgment

The Court:

1. Declares that

— by exempting from the environmental impact assessment proce-
dure the Massafra installation for the incineration of combus-
tible materials derived from waste and biomass, with a capacity
exceeding 100 tonnes per day, covered by point 10 of Annex I
to Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the effects of certain public and private projects
environment, as amended by Council Directive
on the
97/11/EC of 3 March 1997,

30.12.2006

EN

Official Journal of the European Union

C 331/7

— by adopting Article 3(1) of the Decree of the President of the
Council of Ministers of 3 September 1999, entitled ‘Policy and
coordination measure amending and completing the earlier
policy and coordination measure for the implementation of
Article 40(1) of Law No 146 of 22 February 1994
concerning provisions relating to the assessment of environ-
mental impact’, amending Annex A(i) and (l) to the Decree of
the President of
the Republic of 12 April 1996, entitled
‘Policy and coordination measure for the implementation of
Article 40(1) of Law No 146 of 22 February 1994
concerning provisions relating to the assessment of environ-
mental impact’, allowing projects for the recovery of hazardous
and non-hazardous waste with a capacity exceeding 100
tonnes per day covered by Annex I
to Council Directive
85/337, as amended by Council Directive 97/11, to avoid the
environmental
in
Articles 2(1) and 4(1) of that directive, and

impact assessment procedure provided for

— by adopting Article 3(1) of the Decree of the President of the
Council of Ministers of 3 September 1999, laying down, for
the purposes of determining whether a project covered by
to Directive 85/337, as amended by Directive
Annex II
97/11, must be subject to an environmental
impact assess-
ment, a criterion which is inappropriate in that it may exclude
projects which have a significant effect on the environment from
that assessment,

the Italian Republic has failed to fulfil its obligations under Articles
2(1) and 4(1), (2) and (3) of that directive;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 31, 5.2.2005.

Re:

Preliminary ruling — Hoge Raad der Nederlanden — Interpreta-
tion of Articles 7, 8 and 9 of Council Directive 92/12/EEC of
25 February 1992 on the general arrangements for products
subject to excise duty and on the holding, movement and moni-
toring of such products (OJ 1992 L 76, p. 1) — Wine
purchased without the intention of making a profit in one
Member State by nationals of another Member State and trans-
ported by an undertaking from that second Member State —
Excise duty paid in the first Member State

Operative part of the judgment

Council Directive 92/12/EEC of 25 February 1992 on the general
arrangements for products subject to excise duty and on the holding,
movement and monitoring of such products, as amended by Council
Directive 92/108/EEC of 14 December 1992, must be construed as
meaning that where, as in the case in the main proceedings, a private
individual who is not operating commercially or with a view to making
a profit acquires in one Member State, for his own personal require-
ments and those of other private individuals, products subject to excise
duty which have been released for consumption in that Member State
and arranges for them to be transported to another Member State on
his behalf by a transport company established in that other State,
Article 7 of that Directive, and not Article 8 thereof, is applicable,
with the result that excise duty is also to be levied in that other State.
Under Article 7(6) of the Directive, the excise duty paid in the first
State is, in such a case, to be reimbursed in accordance with Article 22
(3) of the Directive.

(1) OJ C 69, 19.3.2005.

Judgment of the Court (Third Chamber) of 23 November
2006 (reference for a preliminary ruling from the Hoge
Raad der Nederlanden (Netherlands)) — Staatssecretaris
van Financiën v B.F. Joustra

(Case C-5/05) (1)

(Tax provisions — Harmonisation of
laws — Directive
92/12/EEC — Excise duties — Wine — Articles 7 to 10 —
Determination of the Member State in which duties are
chargeable — Acquisition by a private individual for his own
use and that of other private individuals — Transport to
another Member State by a transport undertaking —
Arrangements applicable in the Member State of destination)

Judgment of the Court (Third Chamber) of 30 November
the European Communities v
2006 — Commission of

Grand Duchy of Luxembourg

(Case C-32/05) (1)

(Failure of a Member State to fulfil obligations — Environ-
ment — Directive 2000/60/EC — Failure to notify imple-
menting measures — Obligation to adopt framework legisla-
tion in national law — None — Incomplete implementation of
or failure to implement Articles 2, 7(2) and 14)

(2006/C 331/10)

Language of the case: Dutch

(2006/C 331/11)

Language of the case: French

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Respondent: B.F. Joustra

Parties

Applicant: Commission of the European Communities (repre-
sented by: S. Pardo Quintillán and J. Hottiaux, Agents)

Defendant: Grand Duchy of Luxembourg (represented by: S.
Schreiner, Agent, and by P. Kinsch, avocat)