Case C-231/05: Judgment of the Court (Grand Chamber) of 18 July 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus) — Oy AA (Freedom of establishment — Corporate tax legislation — Ability of a company to deduct sums paid by way of intra-group transfer — Obligation on the transferee company also to have its establishment in the Member State concerned)
Date: 2007-10-06
Institutions: Court of Justice
Subjects: Finland, capital transfer, corporation tax, discrimination on the basis of nationality, interpretation of the law, parent company, subsidiary, tax relief

6.10.2007

EN

Official Journal of the European Union

C 235/3

Re:

Operative part of the judgment

Failure of a Member State to fulfil obligations — Failure to fulfil
obligations resulting from Article 12(6) of Council Directive
92/49/EEC of 18 June 1992 on the coordination of laws, regu-
lations and administrative provisions relating to direct insurance
other than life assurance and amending Directives 73/239/EEC
and 88/357/EEC (third non-life insurance Directive) (OJ 1992
L 228, p. 1) and Article 14(5) 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) — National
legislation which is discriminatory towards insurers in other
Member States

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs.

(1) OJ C 19, 22.1.2005.

Judgment of the Court (First Chamber) of 18 July 2007 —
the European Communities v Italian
Commission of

Republic

(Case C-134/05) (1)

(Failure of a Member State to fulfil obligations — Freedom to
provide services — Right of establishment — Extrajudicial
debt recovery)

(2007/C 235/04)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa, Agent)

Defendant: Italian Republic (represented by: I.M. Braguglia and P.
Gentili, Agents)

Re:

1. Declares that, by requiring, within the context of the Consolidated
Law on public security (Testo unico delle leggi di pubblica sicur-
ezza), approved by Royal Decree No 773 of 18 June 1931, every
undertaking pursuing the activity of extrajudicial debt recovery:

— to apply, even though the undertaking holds a licence issued by
the Questore of a province, for a new licence for each other
province in which it wishes to carry on its activities, unless it
confers authority on an authorised agent in that other province,
the Italian Republic has failed to fulfil
its obligations under
Articles 43 EC and 49 EC;

— to have premises in the territory covered by the licence and to
display in those premises a list of the services which may be
provided for clients, the Italian Republic has failed to fulfil its
obligations under Article 49 EC;

— to have premises in each province in which it intends to carry
on its activities, the Italian Republic has failed to fulfil its obli-
gations under Article 43 EC;

2. Dismisses the action as to the remainder;

3. Orders the Commission of

the European Communities and the

Italian Republic to bear their own respective costs.

(1) OJ C 143, 11.6.2005.

Judgment of the Court (Grand Chamber) of 18 July 2007
(reference for a preliminary ruling from the Korkein
hallinto-oikeus) — Oy AA

(Case C-231/05) (1)

(Freedom of establishment — Corporate tax legislation —
Ability of a company to deduct sums paid by way of
intra-group transfer — Obligation on the transferee company
also to have its establishment in the Member State concerned)

(2007/C 235/05)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeu

Failure of a Member State to fulfil obligations — Infringement
of Articles 43 EC and 49 EC — National law making it compul-
sory to obtain a licence in order to carry on the business of
extra-judicial credit recovery the validity of which is restricted to
the province in which it was granted.

Parties to the main proceedings

Applicant: Oy AA

C 235/4

EN

Official Journal of the European Union

6.10.2007

Re:

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus —
Interpretation of Articles 43, 56 and 58 EC — Income tax
legislation — Deductibility by a company of sums paid as an
intra-group transfer conditional on the transferee company also
having its establishment in the Member State concerned

Operative part of the judgment

Article 43 EC does not preclude a system instituted by legislation of a
Member State, such as that at issue in the main proceedings, whereby
a subsidiary resident
in that Member State may not deduct an
intra-group financial transfer which it makes in favour of its parent
company from its taxable income unless that parent company has its
establishment in that same Member State.

Reference for a preliminary ruling — Bundesgerichtshof —
Interpretation of Article 54 of the Convention implementing
the Schengen Agreement of 14 June 1985 between the Govern-
ments of the States of the Benelux Economic Union, the Federal
Republic of Germany and the French Republic on the gradual
abolition of checks at their common borders (OJ 2000 L 239,
p. 19) — Ne bis in idem principle — Conditions governing the
expiry of the right to bring criminal proceedings — Notion of
‘same acts’ — Transportation of contraband cigarettes across the
in two
territory of several Member States — Conviction,
Member States,
tax evasion and handling the
profits of tax evasion, respectively — Notion of ‘enforcement’
— Stay in enforcement of the sentence — Inclusion of periods
of detention on remand

in respect of

(1) OJ C 193, 6.8.2005.

Operative part of the judgment

Judgment of the Court (Second Chamber) of 18 July 2007
(reference for a preliminary ruling from the Bundesgericht-
shof — Germany) — Criminal proceedings against Jürgen
Kretzinger

(Case C-288/05) (1)

(Convention implementing the Schengen Agreement —
Article 54 — Ne bis in idem principle — Notion of ‘same
acts’ — Contraband cigarettes — Importation into several
Contracting States — Prosecution in different Contracting
States — Notion of ‘enforcement’ of criminal penalties —
Suspension of the execution of the sentence — Setting-off of
brief periods of detention pending trial — European arrest
warrant)

(2007/C 235/06)

Language of the case: German

Referring court

Bundesgerichtshof

Party in the main proceedings

Jürgen Kretzinger

in the presence of: Hauptzollamt Augsburg

1. Article 54 of the Convention implementing the Schengen Agree-
ment of 14 June 1985 between the Governments of the States of
the Benelux Economic Union, the Federal Republic of Germany
and the French Republic on the gradual abolition of checks at their
common borders, signed on 19 June 1990, in Schengen, must be
interpreted as meaning that:

— the relevant criterion for the purposes of the application of that
article is identity of the material acts, understood as the exis-
tence of a set of facts which are inextricably linked together,
irrespective of the legal classification given to them or the legal
interest protected;

— acts consisting in receiving contraband foreign tobacco in one
Contracting State and of importing that tobacco into another
Contracting State and being in possession of it there, charac-
terised by the fact that the defendant, who was prosecuted in
two Contracting States, had intended from the outset to trans-
port the tobacco, after first taking possession of it, to a final
destination, passing through several Contracting States in the
process, constitute conduct which may be covered by the notion
of ‘same acts’ within the meaning of Article 54. It is for the
competent national courts to make the final assessment in that
respect.

2. For the purposes of Article 54 of the CISA, a penalty imposed by
a court of a Contracting State ‘has been enforced’ or is ‘actually in
the process of being enforced’
if the defendant has been given a
suspended custodial sentence.

3. For the purposes of Article 54 of the CISA, a penalty imposed by
a court of a Contracting State is not to be regarded as ‘having been
enforced’ or ‘actually in the process of being enforced’ where the
defendant was for a short time taken into police custody and/or
held on remand pending trial and that detention would count
towards any subsequent enforcement of the custodial sentence under
the law of the State in which judgment was given.