Case C-160/07: Action brought on 22 March 2007 — Commission of the European Communities v Portuguese Republic
Date: 2007-06-09
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, harbour installation, international standard, maritime transport, national implementing measure, prevention of pollution, transport safety, working conditions

C 129/6

EN

Official Journal of the European Union

9.6.2007

Parties to the main proceedings

Action brought on 22 March 2007 — Commission of the
European Communities v Portuguese Republic

Appellant: Finanzamt für Körperschaften III in Berlin

Respondent: Krankenheim Ruhesitz am Wannsee-Seniorenheim-
statt GmbH

Questions referred

1. Does Article 31 of

the Agreement on the European
Economic Area (1) prohibit a legal provision of a Member
State according to which, when calculating total income, a
taxpayer resident and subject to unlimited taxation in one
Member State is able under certain conditions to deduct
losses incurred by a permanent establishment situated in
another Member State which are exempt from income tax
pursuant to a double taxation convention,

— but according to which the sum deducted must, in the
tax assessment period concerned, be added back in the
calculation of total income, to the extent to which, in a
subsequent tax assessment period, a positive amount of
income from commercial activities which is exempt from
tax pursuant to the double taxation convention is gener-
ated by permanent establishments in that other Member
State,

— subject

in the latter case to an exception where the
taxpayer can prove that, according to the provisions of
is ‘in
the other Member State applicable to him,
general’ not possible to claim deduction of losses in a
year other than that in which those losses were incurred,
which is not the case where, although a deduction of
losses is in general possible according to the law of that
State, it is not available to the taxpayer in the specific
situation in which he finds himself?

it

2. If the answer to (1) is in the affirmative: is the position in
the State of residence affected if the limitations on deduction
of losses applicable in the other Member State (being the
source State) themselves contravene Article 31 of the Agree-
ment on the European Economic Area on the ground that
they discriminate against a taxpayer with income from his
permanent establishment who is subject only to limited taxa-
tion there compared with a taxpayer who is subject to unlim-
ited taxation there?

3. Further assuming that the answer to (1) is in the affirmative:
must the State of residence refrain from retroactive recovery
of tax on losses incurred by a permanent establishment situ-
ated in another Member State, to the extent to which those
losses cannot otherwise be deducted in any Member State on
the ground that the permanent establishment in that other
Member State has been disposed of?

(1) OJ 1994 L 1, p. 1.

(Case C-160/07)

(2007/C 129/09)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: K. Simonsson and P. Andrade, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration that, by failing to transpose into domestic
law Article 7a,
in conjunction with Part B of Annex XI,
Article 9(2) and 12(1) in conjunction with Annex VII to
Directive 95/21/EC (1), in its latest version under Directive
2002/84/EC (2), the Portuguese Republic has failed to fulfil
its obligations under Directive 95/21/EC as subsequently
amended (in particular by Directive 2001/106 (3));

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition into domestic law of
Directive 95/21/EC expired on 30 June 1996. The period
the transposition of Directive 2001/106/EC
prescribed for
expired on 22 July 2003. The period prescribed for the transpo-
sition of Directive 2002/84/EC expired on 23 November 2003.

(1) Council Directive 95/21/EC of 19 June 1995 concerning the enforce-
ment, in respect of shipping using Community ports and sailing in
the waters under the jurisdiction of the Member States, of interna-
tional standards for ship safety, pollution prevention and shipboard
living and working conditions (port State control) (OJ 1995 L 157,
p. 1).

(2) Directive 2002/84/EC of

the
Council of 5 November 2002 amending the Directives on maritime
safety and the prevention of pollution from ships (OJ 2002 L 324,
p. 53).

the European Parliament and of

(3) OJ 2002 L 19, p. 17.