Case C-157/07: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 21 March 2007 — Finanzamt für Körperschaften III in Berlin v Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt GmbH
Date: 2007-06-09
Institutions: Court of Justice
Subjects: double taxation, financial loss, interpretation of the law, tax convention, tax on income, tax relief

9.6.2007

EN

Official Journal of the European Union

C 129/5

3) Are the criteria set out in Case C-332/04 (3) Commission v
Spain, and specifically those contained in paragraphs 69
to 88 of the judgment, applicable to the projects which are
the subject-matter of these proceedings, having regard to
their nature, the nature of the road on which they are to be
carried out,
effect on the
characteristics,
surrounding area, budget and the possible splitting up of a
larger project which contemplates similar works on the same
road, such that there was a requirement to submit them to
the prescribed environmental impact assessment procedure?

their

size,

4) Do the relevant administrative records and, specifically, the
studies and reports contained therein, demonstrate that the
Spanish authorities have, in practice, complied with the obli-
gations arising from Council Directive 85/377/EEC, as
amended by Council Directive 97/11/EC, relating to the
environmental assessment of
the projects which are the
subject-matter of these proceedings, even if the project was
not
formally subjected to the prescribed environmental
assessment procedure set out in the Directive?

(1) 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 L 175, 5.7.1985, p. 40).

(2) Council Directive 97/11/EC of 3 March 1997 amending Directive
85/337/EEC on the assessment of the effects of certain public and
private projects on the environment (OJ L 73, 14.3.1997, p. 5).
(3) Commission of the European Communities v Kingdom of Spain [2006]

ECR I-40.

Action brought on 15 March 2007 — Commission of the
European Communities v Republic of Poland

(Case C-149/07)

(2007/C 129/07)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Hottiaux and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

Pleas in law and main arguments

Article 28 EC prohibits quantitative restrictions on imports
between Member States and all measures having equivalent
effect. The Commission submits that, by failing to establish a
specific legal framework regarding the grant of authorisations
for the placing on the market of plant protection products
which are imported from other Member States, where those
products have already obtained authorisation to be placed on
the market, and which are identical (within the meaning of the
case-law of the Court of Justice of the European Communities)
to products already placed on the market
the
in Poland,
its obligations under
Republic of Poland has failed to fulfil
Article 28 EC.

According to the Court of Justice's case-law, in the absence of
trading rules enacted by Member States
harmonisation ‘all
which are capable of hindering, directly or indirectly, actually or
potentially,
intra-Community trade are to be considered as
measures having an effect equivalent to quantitative restrictions’.
The Court has also held that national rules or practices which
result in imports being channelled in such a way that only
certain traders can effect
these imports, whereas others are
prevented from doing so, constitute a measure having an effect
equivalent
to a quantitative restriction. A procedure under
which prior authorisation is required for the sale of imported
products must be established by means of rules which are of
general application and which also explicitly bind the national
authorities. That procedure must be easily accessible and carried
out within a reasonable time. It is necessary for such general
rules to exist in national
law because they enable citizens to
exercise the rights accorded to them by Community law.

the two-month period set

While the new proposal
for legislative amendment may be
accepted by the Commission, it had not entered into force on
in the Commission's
expiry of
reasoned opinion calling for elimination of the infringement. In
accordance with settled case-law,
the question whether a
Member State has failed to fulfil its obligations must be deter-
mined by reference to the legal situation prevailing in that State
at the end of the period laid down by the Commission in the
reasoned opinion. The Court cannot take account of any subse-
quent changes in national law.

a

for

Reference
from the
preliminary
Bundesfinanzhof (Germany) lodged on 21 March 2007 —
Finanzamt für Körperschaften III in Berlin v Krankenheim
Ruhesitz am Wannsee-Seniorenheimstatt GmbH

ruling

(Case C-157/07)

(2007/C 129/08)

Language of the case: German

— declare that, by failing to establish a specific legal framework
import of
for the grant of authorisations for the parallel
the Republic of
plant protection products into Poland,
Poland has failed to fulfil its obligations under Article 28 EC;

Referring court

— order the Republic of Poland to pay the costs.

Bundesfinanzhof

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.