Case C-255/05: Judgment of the Court (Second Chamber) of 5 July 2007 — Commission of the European Communities v Italian Republic (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)
Date: 2007-08-25
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, disclosure of information, environmental impact, waste disposal, waste incineration, waste management

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

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