Case C-522/04: Judgment of the Court (Second Chamber) of 5 July 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Freedom of movement for persons — Freedom of movement for workers — Freedom to provide services — Freedom of establishment — Free movement of capital — Articles 28, 31, 36 and 40 of the Agreement on the European Economic Area — Directive 2002/83/EC — Tax legislation providing for less favourable treatment of contributions to occupational pension schemes paid to insurance undertakings established abroad — Taxation in Belgium of capital and surrender values paid to beneficiaries who have transferred their residence abroad — Tax convention preventing double taxation — Representative responsible)
Date: 2007-08-25
Institutions: Court of Justice
Subjects: Belgium, action for failure to fulfil an obligation, free movement of capital, life assurance, pension scheme, right of establishment, social-security contribution, tax law

C 199/4

EN

Official Journal of the European Union

25.8.2007

Re:

Defendant: Kingdom of Belgium (represented by: E. Dominkovits
and M. Wimmer, acting as Agents)

Reference for a preliminary ruling — VAT and Duties Tribunal,
London — Interpretation of Article 4(1), (2) and (5) of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmoni-
sation 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) — Definition of ‘economic
activity’ — Activities or transactions carried out by a body
governed by public law acting as a public authority — Alloca-
tion, by auction, of spectrum to mobile telephony operators

Re:

Operative part of the judgment

Article 4(1) and (2) 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 is to be interpreted as meaning that
the issuing of licences, such as third generation mobile telecommunica-
tions licences known as ‘UMTS’, by auction by the national regulatory
authority responsible for spectrum assignment of the rights to use tele-
communications equipment does not constitute an economic activity
within the meaning of that provision and, consequently, does not fall
within the scope of that directive.

(1) OJ C 273, 6.11.2004.

Failure of a Member State to fulfil its obligations — Breach of
Articles 18, 39, 43, 49 and 56 of the EC Treaty, of Articles 28,
31, 36 and 40 of the EEA Agreement, and of Articles 5(1) and
53(2) of Directive 2002/83/EC of the European Parliament and
of the Council of 5 November 2002 concerning life assurance
(OJ 2002 L 345, p. 1) — Tax legislation providing for less
favourable treatment of the contributions to occupational retire-
schemes paid to insurance undertakings established
ment
abroad, taxation in Belgium of the capital and surrender values
paid to recipients who have transferred their residence abroad
and the obligation for those undertakings to have a representa-
tive residing in Belgium in order to guarantee payment of the
annual tax on insurance contracts

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

(Case C-522/04) (1)

The Court:

Operative part of the judgment

(Failure of a Member State to fulfil obligations — Freedom of
movement for persons — Freedom of movement for workers
— Freedom to provide services — Freedom of establishment
— Free movement of capital — Articles 28, 31, 36 and 40 of
the Agreement on the European Economic Area — Directive
2002/83/EC — Tax legislation providing for less favourable
treatment of contributions to occupational pension schemes
paid to insurance undertakings established abroad — Taxa-
tion in Belgium of capital and surrender values paid to benefi-
ciaries who have transferred their residence abroad — Tax
taxation — Representative
convention preventing double

1. — By making the deductibility of employers' insurance contribu-
tions supplementary pension and life assurance subject to the
condition,
laid down in Article 59 of the Income Tax Code
1992 consolidated by the Royal Decree of 10 April 1992, as
amended by the Law of 28 April 2003 on supplementary
pensions and the tax regime applying thereto and to certain
additional social security advantages, that those contributions
be paid to an insurance undertaking or welfare fund established
in Belgium;

responsible)

(2007/C 199/06)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and D. Triantafyllou, acting as Agents)

— by making the tax reduction for long-term savings, granted by
virtue of Articles 145/1 and 145/3 of the Income Tax Code
1992, as amended by the Law of 28 April 2003, for personal
supplementary pension and life assurance contributions and
premiums paid in the form of deductions made by the employer
from the employee's remuneration, or in the form of deductions
made by the undertaking from the remuneration of a director
who is not under a contract of employment, subject to the
condition that those contributions and premiums be paid to an
insurance undertaking or welfare fund established in Belgium;

25.8.2007

EN

Official Journal of the European Union

C 199/5

— by providing, in Article 364a of the Income Tax Code 1992,
as amended by the Law of 28 April 2003, that, when capital,
surrender values and savings referred to in Article 34 of the
Income Tax Code 1992 are paid or allocated to a taxpayer
who has previously transferred his residence or the primary
location of his assets abroad,
the payment or allocation is
deemed to have taken place on the day preceding that transfer,
and by treating, pursuant to the second paragraph of Article
364a, in the same way as an allocation any transfer referred to
in Article 34(2)(3), so that every insurer is under an obligation
to withhold amounts in respect of income tax, in accordance
with Article 270 of
from capital and surrender
values paid to a non-resident who has been, at one time or
another, resident for tax purposes in Belgium, in so far as those
sums have been built up, entirely, or partially, during the
period in which the person concerned was a Belgian resident for
tax purposes, even though bilateral tax agreements concluded
by the Kingdom of Belgium grant the right to tax such income
to another Contracting State;

the Code,

— by levying tax, pursuant to Article 364b of the Income Tax
Code 1992, as amended by the Law of 28 April 2003, on
transfers of capital or surrender values built up by means of
employers' contributions or personal contributions for supple-
mentary retirement benefits, where the transfer is made by the
pension fund or insurance institution with which the capital or
surrender values have been built up in favour of the beneficiary
or persons entitled through him, to another pension fund or
insurance institution established outside Belgium, while such a
transfer does not constitute a taxable transaction if the capital
or surrender values are transferred to another pension fund or
insurance institution established in Belgium;

— by requiring, on the basis of Article 224/2a of the General
Regulation on taxes assimilated to stamp duty resulting from
the Royal Decree of 3 March 1927, as amended by the Royal
Decree of 30 July 1994, foreign insurers who have no place of
business in Belgium to obtain authorisation, before providing
their
for a representative residing in
Belgium, who must personally assume, in writing, responsibility
tax on insurance
towards the State for paying the annual
contracts,
interest and fines which may be due in respect of
contracts relating to risks situated in Belgium,

in Belgium,

services

the Kingdom of Belgium has failed to fulfil its obligations under
Articles 18 EC, 39 EC, 43 EC and 49 EC, Articles 28, 31 and
36 of the Agreement establishing the European Economic Area of
2 May 1992 and Article 4 of Council Directive 92/96/EEC of
10 November 1992 on the coordination of laws, regulations and
administrative provisions
life assurance and
amending Directives 79/267/EEC and 90/619/EEC (third life
assurance Directive), following revision, Article 5(1) of Directive
2002/83/EC of the European Parliament and of the Council of 5
November 2002 concerning life assurance.

relating to direct

2. The remainder of the action is dismissed.

3. The Kingdom of Belgium is ordered to pay the costs.

(1) OJ C 249, 14.10.2006.

Judgment of the Court (Second Chamber) of 5 July 2007 —
the European Communities v Italian
Commission of

Republic

(Case C-255/05) (1)

(Failure of a Member State to fulfil obligations — Assessment
of the effects of certain projects on the environment — Waste
recovery — Implementation of the ‘third line’ of the Brescia
waste incinerator — Publicity for the application for a permit
— Directives 75/442/EEC, 85/337/EEC and 2000/76/EC)

(2007/C 199/07)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Konstantinidis, Agent, and F. Louis and A. Capo-
bianco, avocats)

Defendant:
Agent, and M. Fiorilli, avvocato dello Stato)

Italian Republic (represented by:

I.M. Braguglia,

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 2(1) and Article 4(1) of 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 1985 L 175,
p. 40), as amended by Council Directive 97/11/EC of 3 March
1997 (OJ 1997 L 73, p. 5) — Infringement of Article 12(1) of
Directive 2000/76/EC of the European Parliament and of the
Council of 4 December 2000 on the incineration of waste
(OJ 2000 L 332, p. 91) — Consent granted without an
assessment of and without making public the prior application
for an authorisation — Implementation of a ‘third line’ of waste
incineration by ASM di Brescia SpA

Operative part of the judgment

The Court:

1. Declares that, by not making the project to implement a ‘third line’
of the incinerator belonging to ASM Brescia SpA subject to the
environmental
impact assessment procedure provided for in Arti-
cles 5 to 10 of Council Directive 85/337/EEC of 27 June 1985
on the assessment of the effects of certain public and private projects
on the environment, as amended by Council Directive 97/11/EC of
3 March 1997, before consent was given for its construction, the
Italian Republic has
obligations under
Articles 2(1) and 4(1) of that directive;

failed to

fulfil

its