Case C-321/05: Judgment of the Court (First Chamber) of 5 July 2007 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Hans Markus Kofoed v Skatteministeriet (Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares — National decision to tax an exchange of shares — Exchange of shares — Distribution of a dividend shortly afterwards — Abuse of rights)
Date: 2007-08-25
Institutions: Court of Justice
Subjects: Denmark, economic concentration, interpretation of the law, misuse of a right, share, shareholding, tax system

C 199/6

EN

Official Journal of the European Union

25.8.2007

2. Declares that, by not making the declaration in respect of

the
commencement of the operations of the ‘third line’ of that incin-
erator available at one or more locations accessible to the public for
an appropriate period, to enable the public to comment on it before
the competent authority reached a decision, and by not making the
including a copy of
decisions relating to that declaration,
the
authorisation, available to the public,
the Italian Republic has
failed to fulfil
its obligations under 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;

3. Orders the Italian Republic to pay the costs;

4. Orders the United Kingdom of Great Britain and Northern Ireland

to bear its own costs.

Re:

Reference for a preliminary ruling — Cour constitutionnelle
(formerly Cour d'arbitrage) — Validity of Article 1(2) of Direc-
tive 2001/97/EC of the European Parliament and of the Council
of 4 December 2001 amending Council Directive 91/308/EEC
on prevention of the use of the financial system for the purpose
of money laundering (OJ 2001 L 344, p. 76) — Right to a fair
trial as guaranteed by Article 6 of
the Convention for the
Protection of Human Rights and Fundamental Freedoms and
Article 6(2) of the Treaty on European Union — Principles of
professional secrecy and the independence of lawyers — Obliga-
tion on lawyers to inform the authorities responsible for the
fight against money laundering of any fact which might be an
indication of such laundering

(1) OJ C 205, 20.8.2005.

Operative part of the judgment

Judgment of the Court (Grand Chamber) of 26 June 2007
(reference for a preliminary ruling from the Cour constitu-
tionnelle (formerly Cour d'arbitrage) (Belgium)) — Ordre
des barreaux francophones and germanophone, Ordre fran-
çais des avocats du barreau de Bruxelles, Ordre des
barreaux flamands, Ordre néerlandais des avocats du
barreau de Bruxelles v Conseil des Ministres

(Case C-305/05) (1)

(Directive 91/308/EEC — Prevention of the use of the finan-
cial system for the purpose of money laundering — Obliga-
tion on lawyers to inform the competent authorities of any
fact which might be an indication of money laundering —
Right to a fair trial — Professional secrecy and the indepen-
dence of lawyers)

(2007/C 199/08)

Language of the case: French

Referring court

Cour constitutionnelle (formerly Cour d'arbitrage)

The obligations of information and of cooperation with the authorities
responsible for combating money laundering, laid down in Article 6(1)
of Council Directive 91/308/EEC of 10 June 1991 on prevention of
the use of the financial system for the purpose of money laundering, as
amended by Directive 2001/97/EC of the European Parliament and of
the Council of 4 December 2001, and imposed on lawyers by
Article 2a(5) of Directive 91/308, account being taken of the second
subparagraph of Article 6(3) thereof, do not infringe the right to a fair
trial as guaranteed by Article 6 of the Convention for the Protection of
Human Rights and Fundamental Freedoms and Article 6(2) EU.

(1) OJ C 243, 1.10.2005.

Judgment of the Court (First Chamber) of 5 July 2007
(reference for a preliminary ruling from the Østre Landsret
(Denmark)) — Hans Markus Kofoed v Skatteministeriet

(Case C-321/05) (1)

(Directive 90/434/EEC — Common system of taxation applic-
able to mergers, divisions, transfers of assets and exchanges of
shares — National decision to tax an exchange of shares —
Exchange of shares — Distribution of a dividend shortly after-
wards — Abuse of rights)

(2007/C 199/09)

Language of the case: Danish

Parties to the main proceedings

Applicants: Ordre des barreaux francophones et germanophone,
Ordre français des avocats du barreau de Bruxelles, Ordre des
barreaux flamands, Ordre néerlandais des avocats du barreau de
Bruxelles

Referring court

Østre Landsret

Defendant: Conseil des Ministres

Parties to the main proceedings

Applicant: Hans Markus Kofoed

Intervening parties: Conseil des barreaux de l'Union européenne,
Ordre des avocats du barreau de Liège

Defendant: Skatteministeriet

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