Case C-137/07 P: Appeal brought on 8 March 2007 by Österreichische Volksbanken-AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities, concerning Case T-271/02
Date: 2007-05-26
Institutions: Court of Justice
Subjects: accounting entry, appeal, bank, competition law, control of restrictive practices, infringement of EU law, restriction on competition

26.5.2007

EN

Official Journal of the European Union

C 117/13

Action brought on 7 March 2007 — Commission of the
European Communities v Kingdom of Spain

(Case C-136/07)

(2007/C 117/20)

Language of the case: Spanish

(4) Directive 2006/23/EC (3) of the European Parliament and of
the Council of 5 April 2006 on a Community air traffic
controller licence establishes a system of mutual recognition
of air traffic controller licences issued in accordance with
that directive. However, the specified period within which
Member States must comply with that directive does not
expire until 17 May 2008. Consequently, until that date
Directives 89/48/EEC and 92/51/EEC continue to apply in
relation to the taking up and pursuit of the profession of air
traffic controller in Spain.

Parties

Applicant(s): Commission of the European Communities (repre-
sented by: H. Støvlbæk and R. Vidal Puig, agents)

(1) OJ 1989 L 19, p. 16.
(2) OJ 1992 L 209, p. 25.
(3) OJ 2006 L 114, p. 22.

Defendant(s): Kingdom of Spain

Form of order sought

— Declare that the Kingdom of Spain has failed to fulfil

its
obligations under Council Directive 89/48/EEC (1) of
21 December 1988 on a general system for the recognition
of higher-education diplomas awarded on completion of
professional education and training of at least three years'
duration, and under Council Directive 92/51/EEC (2) of
18 June 1992 on a second general system for the recogni-
tion of professional education and training to supplement
Directive 89/48/EEC,
in relation to the taking up of the
profession of air traffic controller.

— order Kingdom of Spain to pay the costs.

Appeal brought on 8 March 2007 by Österreichische
Volksbanken-AG against the judgment of the Court of First
Instance (Second Chamber) delivered on 14 December
2006 in Joined Cases T-259/02 to T-264/02 and T-271/02
Raiffeisen Zentralbank Österreich AG and Others v
the European Communities, concerning
Commission of

Case T-271/02

(Case C-137/07 P)

(2007/C 117/21)

Language of the case: German

Pleas in law and main arguments

(1) Directive 89/48/EEC is applicable to the taking up and
pursuit of the profession of air traffic controller in Spain
given that

Parties

— the set of diplomas, licences and ratings necessary to the
pursuit of
in
Spain is a ‘diploma’ within the meaning of Directive
89/48/EEC;

‘air traffic controller’

the profession of

— the profession of air traffic controller is a ‘regulated
in Spain within the meaning of Directive

profession’
89/48/EEC.

(2) Notwithstanding the above, the Kingdom of Spain has not
adopted the measures necessary to implement Directive
89/48/EEC in relation to the profession of air
traffic
controller.

(3) The Commission considers that the Kingdom of Spain has
also failed to fulfil its obligations under Directive 92/51/EEC
in that

— Directive 92/51/EEC is applicable to the profession of

air traffic controller; and

— The Kingdom of Spain has not adopted the measures
necessary to implement Directive 92/51/EEC in relation
to the profession of air traffic controller.

Appellant: Österreichische Volksbanken-AG (represented by:
A. Ablasser-Neuhuber, R. Bierwagen and F. Neumayr, lawyers)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

1. Set aside paragraphs 2 and 4 of the operative part of the
judgment at first instance of 14 December 2006 in Joined
Cases T-259/02 to T-264/02 and T-271/02 (1) and

a. annul

the
the decision forming the subject-matter of
dispute — Commission Decision 2004/138/EC of 11 June
2002 in cartel case COMP/36.571/D-1 — in accordance
with the first and third claims in so far as the decision
relates to the appellant or, in the alternative, reduce the
fine imposed on the appellant in accordance with the
third claim; or

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.