Case C-28/07 P: Appeal brought on 26 January 2007 by NV Ter Lembeek International against the judgment delivered by the Court of First Instance (Fifth Chamber, Extended Composition) on 23 November 2006 in Case T-217/02 NV Ter Lembeek International v Commission of the European Communities
Date: 2007-04-14
Institutions: Court of Justice
Subjects: General Court (EU), State aid, action for annulment (EU), appeal, claim, law of obligations, share, shareholder

C 82/16

EN

Official Journal of the European Union

14.4.2007

5. If the answer to the fourth question is in the affirmative,
does the second subparagraph of Article 34(2) of the EC
Treaty, which prohibits discrimination among producers and
consumers of agricultural products within the European
Community, preclude the Commission from applying in one
of its own regulations (753/2002) the criterion of homo-
nymy in a manner deriving from the application of Annex I
to that regulation, to the effect, that is to say, of recognising
the legality of the use of many names of vine varieties which
include names that are wholly or partly homonymous with
an equal number of geographical indications, whilst refusing
to accept as lawful the use of just one name of vine variety
(‘Tocai friulano’), which has been lawfully used for centuries
in the European market?

6. Is Article 50 of Regulation No 1493/99 to be interpreted as
meaning that, in implementing the provisions of Articles 23
and 24 of the TRIPS Agreement, and in particular the provi-
sion in Article 24(6)
thereof, concerning homonymous
names of wines, it is not possible for the Council of Minis-
ters or the Member States (still less the European Commis-
sion) to adopt or approve measures such as Commission
Regulation No 753/2002, which, with regard to homon-
ymous names, afford different
to wine names
having the same characteristics from the point of view of
homonymity?

treatment

7. Is the effect of the express reference to Articles 23 and 24 of
the TRIPS Agreement in recital 56 in the preamble to and
Article 50 of Regulation No 1493/99 to make the provision
in Article 24(6), which establishes the right of the States that
are parties
to protect homonymous
names, directly applicable within the Community legal order,
in the light of the case-law of the Court of Justice?

to that agreement

(1) OJ 1999 L 179, p. 1.
(2) OJ 2002 L 118, p. 1.
(3) OJ 2004 L 263, p. 11.

Reference for a preliminary ruling from the Conseil d'Etat
lodged on 26 January 2007 — Banque Féderative du Crédit
Mutuel v Ministre de l'Économie, des Finances et de l'In-
dustrie

(Case C-27/07)

(2007/C 82/28)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicant: Banque Féderative du Crédit Mutuel

Defendant: Ministre de l'Économie, des Finances et de l'Industrie

Question referred

The add-back to the taxable income of a parent company estab-
lished in France of 5 % of the tax credits attributed upon the
distribution of profits by a subsidiary established in another
Member State of the European Union where those distributed
profits have been subject in that other State to a withholding
tax, has no effect on the taxation level of the parent company if
the latter is able to set off all the tax credits against the tax
payable. Where the parent company did not decide to redistri-
bute those profits to its own shareholders within five years, and
in consequence is no longer able to use the fiscal advantage
represented by those tax credits, can the taxation — additional
to corporation tax — which results from the add-back of 5 %
of the tax credits to its taxable income be regarded as permitted
under Article 7(2) of Directive 90/435/EEC of 23 July 1990 (1),
in view of the small amount of such a tax and the fact that it
was established directly in conjunction with payment of tax
credits,
introduced in order to mitigate the economic double
taxation of dividends, or must it be regarded as contrary to the
objectives of Article 4 of the same Directive?

(1) Council Directive 90/435/EEC of 23 July 1990 on the common
system of taxation applicable in the case of parent companies and
subsidiaries of different Member states (OJ 1990 L 225, p. 6).

Appeal brought on 26 January 2007 by NV Ter Lembeek
International against the judgment delivered by the Court
of First Instance (Fifth Chamber, Extended Composition)
on 23 November 2006 in Case T-217/02 NV Ter Lembeek
International v Commission of the European Communities

(Case C-28/07 P)

(2007/C 82/29)

Language of the case: Dutch

Parties

Appellant: NV Ter Lembeek International
(represented by:
J.-P. Vande Maele, F. Wijckmans and F. Tuytschaever, advocaten)

Other party to the proceedings: Commission of
Communities

the European

14.4.2007

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Official Journal of the European Union

C 82/17

Form of order sought

Pleas in law and main arguments

— Declare the present appeal

to be admissible and well
founded and set aside the judgment in Case T-217/02 to the
extent to which that judgment rejected the first part of the
first plea in law;

The period prescribed for the transposition into national law of
Directive 2001/84/EC expired on 31 December 2005.

— Order the Commission to pay the costs of the proceedings.

(1) OJ 2001 L 272, p 32.

Pleas in law and main arguments

1. The sole plea in law is to the effect that the Court of First
Instance acted contrary to Article 87(1) EC in ruling in the
judgment under appeal, on the basis of a misconstruction of
the law, that there was favourable treatment of the appellant
within the terms of Article 87(1) EC.

2. The sole plea consists of two parts:

— Primarily: the judgment under appeal breaches Article 87
(1) EC in holding that that there was favourable treat-
ment of the appellant within the terms of Article 87
(1) EC on the basis of a merely formalistic examination
of Article 87(1) EC, rather than an economic appraisal.

— In the alternative: the judgment under appeal breaches
Article 87(1) EC in holding that that there was no over-
valuation of the shares in issue and that the absence of
overvaluation constituted favourable treatment within the
terms of Article 87(1) EC.

Action brought on 29 January 2007 — Commission of the
European Communities v Kingdom of Spain

(Case C-32/07)

(2007/C 82/30)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Vidal Puig and W. Wils, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that, by failing to adopt all of the laws, regulations
and administrative measures necessary to comply with
Directive 2001/84/EC (1) of the European Parliament and of
the Council of 27 September 2001 on the resale right for
the benefit of the author of an original work of art, the
Kingdom of Spain has failed to fulfil its obligations under
that Directive.

— Order the Kingdom of Spain to pay the costs.

Action brought on 31 January 2007 — Commission of the
European Communities v Italian Republic

(Case C-36/07)

(2007/C 82/31)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Cattabriga, acting as Agent)

Defendant: Italian Republic

Forms of order sought

— Declare that, by failing to adopt all the laws, regulations and
administrative provisions necessary to comply with Council
Directive 2004/68/EC of 26 April 2004 laying down animal
health rules for the importation into and transit through the
Community of certain live ungulate animals, amending
Directives 90/426/EEC and 92/65/EEC and repealing Direc-
tive 72/462/EEC (1), or by failing in any event to communi-
cate those provisions
the Italian
Republic has failed to fulfil its obligations under Article 18
(1) of that directive;

to the Commission,

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit
expired on 20 November 2005.

for

transposition of Directive 2004/68/EC

(1) OJ 2004 L 139, p. 321.