Case C-138/07: Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 9 March 2007 — Belgische Staat v N.V. Cobelfret
Date: 2007-05-26
Institutions: Court of Justice
Subjects: interpretation of the law, parent company, subsidiary, tax on profits of self-employment, tax system

C 117/14

EN

Official Journal of the European Union

26.5.2007

b.

in the further alternative, if the state of the proceedings
does not permit final
judgment to be given, refer the
matter back to the Court of First Instance for renewed
consideration and final judgment;

the obligation to address the facts put forward and to assess
them without any error in law.

(1) OJ C 331, p. 29.

2. order the Commission to pay the costs of the proceedings
the matter is referred back to the Court of First

or,
Instance, reserve the costs for a decision by that court.

if

Pleas in law and main arguments

The appellant's grounds for appeal against the judgment of the
Court of First Instance are as follows:

the undertakings to affect

The Court erred in law in its interpretation of the liability of the
agreements or conduct of
trade
between Member States, and in its application of that criterion
to the present case. It erred in law in its judgment regarding the
relative importance of the criterion as to the partitioning of the
market; it is not clear on what grounds the Court declined to
allow that the criterion of the partitioning of the market has, at
the very least, a strong evidential value as to the existence of an
effect on inter-State trade. Further, the appellant complains that
the meetings
the Court assessed the cross-border effect of
overall,
the
Lombard network separately in relation to their possible effects
on trade between the Member States. The over-extension of
Article 81(1) EC, whereby a cartel which covers the whole terri-
tory of a Member State is deemed, by its very nature, liable to
partition the markets and affect intra-Community trade, or that
there is in any event a strong presumption to that effect,
is
inconsistent with the rationale of that Community law provi-
sion.

instead of examining the individual meetings of

The Court erred in law by failing to apply the conditions for the
attribution of turnover — which have been developed by the
Commission and in case-law — to the attribution to the lead
It thus
institution of the decentralised banks' market shares.
disregarded the fact that both the attribution of turnover and
the attribution of market shares relate to the same substantive
issue in the present case, the determination of the permissible
fine. There appears to be no reason why the comparable issues
of turnover attribution and market share attribution should be
judged by different criteria. However, even if it were assumed
that the decentralised banks' market shares could be attributed
to the lead institution on some basis other than that which
the basis specifically
applies to the attribution of
chosen by the Court is incorrect and unlawful.

turnover,

The Court was wrong to dismiss the appellant's complaints
concerning the failure to take attenuating circumstances into
account. It failed, in its legal assessment, in particular to take
sufficient account of the fact that the appellant had a minor role
in relation to the cartel as a whole and that there was no need
for compulsion in the course of the investigation, as the appel-
lant had cooperated voluntarily with the Commission. The
appellant has a very small market share, was not invited into
the inner circle by the other banks and participated in signifi-
cantly fewer meetings. Those factors, which were put forward
by the appellant and from which the existence of attenuating
circumstances may be inferred, were to some extent not
addressed at all. Neither the Commission nor the Court fulfilled

Reference for a preliminary ruling from the Hof van
beroep te Antwerpen (Belgium) lodged on 9 March 2007
— Belgische Staat v N.V. Cobelfret

(Case C-138/07)

(2007/C 117/22)

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Appellant: Belgische Staat

Respondent: N.V. Cobelfret

Question referred

is, pursuant

Is a set of rules such as the Belgian system of definitive
taxed income, under which relevant dividends are, first, added
to the taxable basis of the parent company and, subsequently,
the amount of
to
those received dividends
Article 205(2) of the Belgian Income Tax Code, deducted from
the taxable basis of the parent company (in the amount of
95 %) only in so far as the parent company has taxable profits,
compatible with Article 4 of Council Directive 90/435/EEC (1)
of 23 July 1990 on the common system of taxation applicable
in the case of parent companies and subsidiaries of different
Member States, inasmuch as the result of such a restriction on
deductibility from definitively taxed income is that a parent
company will, in a subsequent taxable period, be taxed on the
dividends received in the case where it had no, or had inade-
quate, taxable profits over the taxable period in which the divi-
dends were received, or at least that the fiscal losses relating to
the taxable period are wrongly used up and are, as a result, no
longer transferable up to the amount of received dividends,
which, in the absence of fiscal losses, ought in any case to have
been exempted up to 95 %?

(1) OJ 1990 L 225, p. 6.