Case C-331/05 P: Judgment of the Court (Second Chamber) of 28 June 2007 — Internationaler Hilfsfonds eV v Commission of the European Communities (Appeal — Non-contractual liability — Causal link — Costs relating to proceedings before the European Ombudsman)
Date: 2007-08-25
Institutions: Court of Justice
Subjects: General Court (EU), appeal, indemnification, legal expenses, non-governmental organisation

25.8.2007

EN

Official Journal of the European Union

C 199/7

Re:

Re:

Preliminary ruling — Østre Landsret — Interpretation of
Article 2(d) of Council Directive 90/434/EEC of 23 July 1990
on the common system of taxation applicable to mergers, divi-
sions, transfers of assets and exchanges of shares concerning
companies of different Member States (OJ 1990 L 225, p. 1) —
Exchange of shares followed immediately by a distribution of
dividends by the acquiring company,
the amount of which
exceeds 10 % of the nominal value of the shares exchanged

Failure of a Member State to fulfil obligations — Incorrect trans-
position of Council Directive 85/374/EEC of 25 July 1985 on
the approximation of the laws, regulations and administrative
provisions of the Member States concerning liability for defec-
tive products (OJ 1985 L 210, p. 29) — National legislation
which makes the distributor of a defective product liable in the
same way as the producer

Operative part of the judgment

The Court:

Operative part of the judgment

for

provided

In circumstances such as those in the main proceedings, a dividend,
such as that paid, is not to be included in the calculation of the ‘cash
payment’
of Council Directive
in Article 2(d)
90/434/EEC of 23 July 1990 on the common system of taxation
applicable to mergers, divisions, transfers of assets and exchanges of
shares concerning companies of different Member States and that,
accordingly, an exchange of shares such as that in issue constitutes an
‘exchange of shares’ within the meaning of Article 2(d) of that direc-
tive.

1. By adopting and maintaining in force provisions which make inter-
mediaries in the distribution chain liable under the same conditions
as a manufacturer, contrary to Article 3(3) of Council Directive
85/374/EEC of 25 July 1985 on the approximation of the laws,
regulations and administrative provisions of
the Member States
concerning liability for defective products, the Kingdom of Denmark
has failed to fulfil its obligations under that directive.

2. The Kingdom of Denmark is ordered to pay the costs.

Consequently, Article 8(1) of Directive 90/434 precludes, in principle,
the taxation of such an exchange of shares, unless national rules on
abuse of rights, tax evasion or tax avoidance may be interpreted in
accordance with Article 11(1)(a) of Directive 90/434 and thus justify
the taxation of that exchange.

(1) OJ C 257, 15.10.2005.

(1) OJ C 257, 15.10.2005.

Judgment of the Court (First Chamber) of 5 July 2007 —
Commission of the European Communities v Kingdom of
Denmark

(Case C-327/05) (1)

Judgment of the Court (Second Chamber) of 28 June 2007
the
— Internationaler Hilfsfonds eV v Commission of

European Communities

(Case C-331/05 P) (1)

(Appeal — Non-contractual liability — Causal link — Costs
relating to proceedings before the European Ombudsman)

(2007/C 199/11)

Language of the case: German

(Failure of a Member State to fulfil obligations — Directive
85/374/EEC — Liability for defective products — Liability of
the supplier for a defective product)

Parties

(2007/C 199/10)

Language of the case: German

Appellant:
Kaltenecker and S. Krüger, Rechtsanwälte)

Internationaler Hilfsfonds eV (represented by: H.

the European
Other party to the proceedings: Commission of
Communities (represented by: M.-J. Jonczy and S. Fries, Agents)

Parties

Re:

Applicant: Commission of the European Communities (repre-
sented by: N. Rasmussen, A. Caeiros and H. Støvlbæk, acting as
Agents)

Defendant: Kingdom of Denmark (represented by:
acting as Agent)

J. Molde,

Appeal against the order of the Court of First Instance (Third
Internationaler Hilfsfonds e.V. v
Chamber) of 11 July 2005,
Commission (Case T-294/04),
in which the Court of First
Instance dismissed as manifestly unfounded an application for
compensation for damage alleged to have been suffered
comprising the lawyer's fees incurred in three sets of proceed-
ings before the European Ombudsman

C 199/8

EN

Official Journal of the European Union

25.8.2007

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders Internationaler Hilsfonds eV to pay the costs.

(1) OJ C 271, 29.10.2005.

Judgment of the Court (Third Chamber) of 28 June 2007
(reference for a preliminary ruling from the VAT and
Duties Tribunal, London — United Kingdom) — JP Morgan
Fleming Claverhouse Investment Trust plc, The Association
of Investment Trust Companies v The Commissioners of
HM Revenue and Customs

(Case C-363/05) (1)

(Sixth VAT Directive — Article 13B(d)(6) — Exemption —
Special investment funds — Meaning — Definition by the
Member States — Discretion — Limits — Closed-ended
funds)

States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment must be interpreted as
meaning that the words ‘special investment funds’ in that provision
including closed-ended investment funds, such as
are capable of
Investment Trust Companies.

‘special

for the purposes of

2. Article 13B(d)(6) of Sixth Directive 77/388 must be interpreted
as meaning that it allows Member States a discretion in defining
the funds located on their territory which are covered by the notion
the exemption
of
investment funds’
provided for by that provision. However,
in the exercise of that
power, the Member States must respect the objective pursued by
that provision, which is to facilitate investment in securities for
investors through investment undertakings, while guaranteeing the
principle of fiscal neutrality from the point of view of the levying of
VAT on the management of special investment funds which are in
funds such as funds
competition with other special
falling within the scope of Council Directive 85/611/EEC of
20 December 1985 on the coordination of laws, regulations and
administrative provisions
collective
investment in transferable securities (UCITS), as amended by Direc-
tive 2005/1/EC of the European Parliament and of the Council of
9 March 2005.

relating to undertakings

investment

for

3. Article 13B(d)(6) of Sixth Directive 77/388 has direct effect, in
that it can be relied on by a taxable person before a national court
in order to challenge the application of national legislation alleged
to be incompatible with that provision.

(2007/C 199/12)

Language of the case: English

(1) OJ C 271, 29.10.2005.

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicants: JP Morgan Fleming Claverhouse Investment Trust plc,
The Association of Investment Trust Companies

Defendant: The Commissioners of HM Revenue and Customs

Re:

Interpretation of Art. 13B(d)(6) of Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws
of the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment (OJ 1977
L 145, p. 1) — Scope of the exemption of the management of
pooled investment funds — Inclusion of closed-ended funds
such as investment trust companies

Judgment of the Court (First Chamber) of 5 July 2007
(reference for a preliminary ruling from the Simvoulio tis
Epikratias — Greece) — Dionik Anonimi Etairia Emporias
Ipiresion Mikhanografisis,
I/I, Logismikou & Parokhis

Ioannis Mikhail Pikoulas v Epitropi Kefalaiagoras

(Case C-430/05) (1)

(Directive 2001/34/EC — Article 21 — Admission of securi-
ties to official stock exchange listing — Listing particulars
inaccurate information —
(prospectus) — Publication of

Persons responsible — Members of the board of directors)

(2007/C 199/13)

Language of the case: Greek

Operative part of the judgment

Referring court

1. Article 13B(d)(6) of Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member

Simvoulio tis Epikratias (Council of State)