Case C-102/05: Order of the Court (Fourth Chamber) of 10 May 2007 (reference for a preliminary ruling from the Regeringsrätten — Sweden) — Skatteverket v A and B (First subparagraph of Article 104(3) of the Rules of Procedure — Free movement of capital — Freedom of establishment — Taxation — Dividends paid in respect of shares distributed by a close company — Wage rules — Taxation of those dividends as income from assets — Calculation of a flat-rate yield — Percentage of capital invested and fraction of salaries — Branch established in a third country — Failure to take into account employees' wages at this branch)
Date: 2007-07-21
Institutions: Court of Justice
Subjects: Sweden, free movement of capital, interpretation of the law, tax on investment income

C 170/8

EN

Official Journal of the European Union

21.7.2007

Operative part of the judgment

Operative part of the judgment

the

An individual cannot rely, in the context of legal proceedings against
another individual concerning contractual liability, on the infringement
by
latter of Articles 2 and 3 of Commission Decision
1999/93/EC of 25 January 1999 on the procedure for attesting the
conformity of construction products pursuant
to Article 20(2) of
Council Directive 89/106/EEC as regards doors, windows, shutters,
blinds, gates and related building hardware, and of Annexes II and III
thereto.

Article 7(2) of Council Regulation (EEC) No 3950/92 of 28 December
1992 establishing an additional levy in the milk and milk products
sector, as amended by Council Regulation (EC) No 1256/1999 of
17 May 1999, is to be interpreted as meaning that, on the expiry of
a rural lease on a milk production holding, the attached reference quan-
tity can revert to the lessor in so far as that lessor, not being a producer
himself and having no intention to become one, transfers the reference
quantity as soon as possible through a State sales office to a third
party who has that status.

(1) OJ C 131, 3.6.2006.

(1) OJ C 96, 22.4.2006.

Judgment of the Court (Fifth Chamber) of 7 June 2007
(reference for a preliminary ruling from the Bundesverwal-
(Germany)) — Manfred
v
tungsgericht
Landwirtschaftskammer Niedersachsen

Otten

Order of the Court (Fourth Chamber) of 10 May 2007
from the
preliminary
(reference
Regeringsrätten — Sweden) — Skatteverket v A and B

ruling

for

a

(Case C-278/06) (1)

(Case C-102/05) (1)

(Council Regulation (EEC) No 3950/92, as amended by
Council Regulation (EC) No 1256/1999 — Article 7(2) —
Expiry of a rural lease — Temporary acquisition of a reference
quantity by a lessor who is not, and does not intend to
become, a milk producer — Transfer of the reference quantity,
through the State sales office to a
as soon as possible,

producer)

(2007/C 170/13)

Language of the case: German

(First subparagraph of Article 104(3) of the Rules of Proce-
dure — Free movement of capital — Freedom of establishment
— Taxation — Dividends paid in respect of shares distributed
by a ‘close company’ — ‘Wage rules’ — Taxation of those
dividends as income from assets — Calculation of a flat-rate
yield — Percentage of capital invested and fraction of salaries
— Branch established in a third country — Failure to take
into account employees' wages at this branch)

(2007/C 170/14)

Language of the case: Swedish

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Manfred Otten

Defendant: Landwirtschaftskammer Niedersachsen

Referring court

Regeringsrätten

Parties

Applicant: Skatteverket

Defendant: A and B

Re:

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht
— Interpretation of Article 7(2) of Council Regulation (EEC)
No 3950/92 of 28 December 1992 establishing an additional
levy in the milk and milk products sector (OJ 1992 L 405,
p. 1), as amended by Council Regulation (EC) No 1256/1999 of
17 May 1999 (OJ 1999 L 160, p. 73) — Transfer of a reference
quantity on the expiry of a rural lease on a dairy holding to the
lessor who is not a producer himself

Reference for a preliminary ruling — Regeringsrätten — Inter-
pretation of Articles 56 EC and 58 EC — Taxation of dividends
paid by small public limited companies — Tax allowance corres-
ponding to a notional return on capital invested which takes
account of salaries paid by the company and its subsidiaries or
branches in so far as those salaries are taxable in Sweden —
Taking into account of salaries paid by a branch in a non-
member State

21.7.2007

EN

Official Journal of the European Union

C 170/9

Operative part of the order

A national measure which, in the context of taxation on share divi-
dends as income from assets up to the limits of a flat-rate yield calcu-
lated by applying a specific percentage to a base including, besides the
capital invested by the shareholder, a fraction of the salaries paid to
employees of
the company issuing the dividends, does not permit
salaries of workers employed in a branch of this company, or by one of
its subsidiaries to be taken into account, in a third country, seriously
restricts freedom of establishment within the meaning of Article 43 EC
et seq. Those articles cannot be pleaded in circumstances involving the
establishment of a company of a Member State in a third country.

(1) OJ C 106, 30.4.2005.

Appeal brought on 13 February 2007 by Smanor SA,
Hubert Ségaud and Monique Ségaud against the Order of
the Court of
(Fourth Chamber) of
Instance
14 December 2006 in Case T-150/06, Smanor and Others v
Commission

First

(Case C-99/07 P)

(2007/C 170/15)

Language of the case: French

Other party to the proceedings: Commission of
Communities

the European

Forms of order sought

— set aside the judgment of the Court of First Instance of the
European Communities in Case T-340/03 France Télécom SA
v Commission of the European Communities, which dismissed
the European
the appeal against
Communities decision of 16 July 2003 relating to a
proceeding under Article 82 [EC] (Case COMP/38.233 —
Wanadoo Interactive);

the Commission of

— accordingly:

— either refer the case back to the Court of First Instance

for a fresh decision;

— or give final

judgment and annul the decision of the
Commission of the European Communities of 16 July
2003 relating to a proceeding under Article 82 [EC]
(Case COMP/38.233 — Wanadoo Interactive), by
granting the forms of order sought in the application
filed by the appellant at first instance;

— order the Commission of the European Communities to pay

the costs.

Parties

Appellants: Smanor SA, Hubert Ségaud, Monique Ségaud (repre-
sented by: J.P Ekeu and L. Roques, avocats)

Pleas in law and main arguments

Other party to the proceedings: Commission of
Communities

the European

By Order of 23 May 2007 the Court (Sixth Chamber) dismissed
the appeal and ordered Smanor SA and Mr & Mrs Ségaud to
bear their own costs.

Appeal brought on 16 April 2007 by France Télécom SA
against the judgment of the Court of First Instance (Fifth
Chamber, Extended Composition) of 30 January 2007 in
Case T-340/03 France Télécom SA v Commission of the
European Communities

(Case C-202/07 P)

(2007/C 170/16)

Language of the case: French

Parties

Appellant: France Télécom SA, formerly Wanadoo Interactive SA
(represented by: O.W. Brouwer, H. Calvet,
J. Philippe and T.
Janssens, avocats)

The appellant puts forward seven grounds in support of its
appeal.

By its first ground of appeal the appellant claims that the Court
of First
Instance failed to comply with its duty to provide
reasons both as regards the possibility for recoupment of losses,
which must be proven, and as regards the right to align prices
with those of competitors, which the Court ruled out without
explanation.

By its second ground of appeal the appellant claims that the
Court infringed Article 82 EC by refusing Wanadoo the right to
align its prices, in good faith, with those of its competitors. That
right
the
is enshrined in the decision-making practice of
Commission and the case-law of the Court, as well as in the
French Competition doctrine and authorities, and furthermore is
the only means for the appellant to remain competitive in the
market.

By its third ground of appeal the appellant claims that the Court
also infringed Article 82 in failing to find fault with the
Commission's method for calculating cost
recovery, which
involved a distortion of the test of predation required by the
Court. The method which the Commission used made it impos-
sible to know whether the Wanadoo subscribers generated a
profit or loss for that business during their subscription period.