Case C-326/07: Action brought on 13 July 2007 — Commission of the European Communities v Italian Republic
Date: 2007-10-20
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, business management, services of general interest, shareholder, undisclosed partnership

20.10.2007

EN

Official Journal of the European Union

C 247/3

2. On the basis of

the abovementioned provisions, may a
national legislature collect, in respect of slaughtering carried
out outside normal slaughtering hours at the request of the
owner, an additional fee on a percentage basis on top of the
fee collected for slaughtering inspections in normal slaugh-
tering hours when the latter reflects the additional actual
costs, or must those costs be contained in the standard
(increased) fee for all persons subject to a fee?

Action brought on 13 July 2007 — Commission of the
European Communities v Italian Republic

(Case C-326/07)

(2007/C 247/05)

Language of the case: Italian

for

Reference
from the
preliminary
Bundesfinanzhof (Germany) lodged on 11 July 2007 —
Hein Persche v Finanzamt Lüdenscheid

ruling

a

(Case C-318/07)

(2007/C 247/04)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Claimant: Hein Persche

Defendant: Finanzamt Lüdenscheid

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Pignatoro-Nolin and H. Støvlbæk, Agents)

Defendant: Italian Republic

Form of order sought

— declare that, by including provisions such as those contained
in Article 1(2) of the decree of the President of the Council
of Ministers of 10 June 2004 on the definition of criteria for
the exercise of the special powers referred to in Article 2 of
Decree-Law No 332 of 31 May 1994, converted into law
with amendments by Law No 474 of 30 July 1994,
and amended by Article 4(227)(a), (b) and (c) of Finance
Law No 350/2004, the Italian Republic has failed to fulfil its
obligations under Articles 43 and 56 of the EC Treaty;

Questions referred

— order the Italian Republic to pay the costs.

1. Do donations of everyday goods by a national of a Member
State to bodies which have their seat in a different Member
State and, under the law of that Member State, are recog-
nised as charitable, fall within the scope of application of
free movement of capital (Article 56 EC)?

2. If question 1 is answered in the affirmative:

Having regard to the obligation of tax authorities to verify
statements made by taxable persons and to the principle of
proportionality (Article 5(3) EC), is it incompatible with free
movement of capital (Article 56 EC) for the law of a Member
State to confer a tax benefit on donations to charitable
bodies only if the latter are resident in that Member State?

3. If question 2 is answered in the affirmative:

Does Directive 77/799/EEC impose an obligation on the tax
authorities of Member States to obtain assistance from the
administrative authorities of another Member State in order
to verify facts which have occurred in that other Member
State, or can the procedural rules of a taxable person's home
Member State require him to bear the burden of proof
(objective burden of proof) in relation to facts which have
occurred abroad?

Pleas in law and main arguments

The Commission takes the view that the criteria referred to by
Article 1(2) of the Decree of 10 June 2004 for the exercise of
special powers, laid down by Article 4(227)(a), (b) and (c) of
Law No 350/2004, are not precise or specific enough to enable
in another Member State to know when the
an investor
special powers under Article 4(227)(a),
(b) and (c) of Law
No 350/2004 will be used.

The special powers under Article 4(227)(a), (b) and (c) of Law
No 350/2004 are: to prevent investors from acquiring signifi-
cant shareholdings representing at least 5 % of voting rights or
a lower percentage fixed by the Ministry of Finance, to prevent
the conclusion of contracts and agreements between members
representing 5 % of voting rights or a lower percentage fixed by
the Ministry of Finance and the power to veto the adoption of
resolutions for the dissolving of companies, the transferring of
shareholdings, for merger, demerger, transferring abroad of the
company headquarters, or altering of company objects, criteria
applicable to all the sectors mentioned in the first subparagraph
of Article 4(227) of the Law (defence, transport, telecommuni-
cations, energy sources and other public services).

C 247/4

EN

Official Journal of the European Union

20.10.2007

In light of the Court's case-law (Case C-463/00 Commission v
Spain [2003] ECR I-4581; Case C-483/99 Commission v France
[2002] ECR I-4781; Case C-503/99 Commission v Belgium
[2002] ECR I-4809, and Joined Cases C-282/04 and C-293/04
Commission v Netherlands [2006] ECR I-9141), the Commission
considers therefore that the legislation in question goes beyond
what is necessary in order to safeguard the public interests
provided for by Article 1.2 of the Decree of 10 June 2004 and
that it is contrary to both Article 56 EC and Article 43 EC. In
the Commission's view, for the sectors thus regulated, such as
energy, gas or telecommunications, the aim of protecting the
State's vital interests may be attained by adopting less restrictive
as Directive
measures
2003/54/EC (1)
and Directive 2003/55/EC (2) or Directive
2002/21/EC (3) and Directives 2002/19/EC (4), 2002/20/EC (5),
2002/22/CE (6) and 2002/58/EC (7).
is the Commission's
opinion, furthermore, that those acts guarantee the safeguarding
of national minimum provisions and that there is no causal link
between the need to ensure power supplies, the provision of
public services and the supervision of the ownership structure
or of the management of the undertaking.

regulating

activities,

those

such

It

(1) OJ L 176, p. 37.
(2) OJ L 176, p. 57.
(3) OJ L 108, p. 33.
(4) OJ L 108, p. 7.
(5) OJ L 108, p. 21.
(6) OJ L 108, p. 51.
(7) OJ L 201, p. 37.

Action brought on 16 July 2007 — Commission of the
European Communities v Hellenic Republic

(Case C-331/07)

(2007/C 247/06)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Tserepa-Lacombe and F. Erlbacher)

Defendant: Hellenic Republic

Form of order sought

— a declaration that, by not having adopted all the measures
necessary to remedy the serious shortage of staff in the
services responsible for veterinary controls in Greece, which
is likely to undermine the correct and effective application

the Community veterinary legislation,

of
the Hellenic
Republic has failed to fulfil its obligations under that legisla-
tion

— an order that the Hellenic Republic pay the costs.

Pleas in law and main arguments

By this action, the Commission asks the Court to find that by
not having adopted the legal and administrative measures
necessary first to comply with the obligation laid down by
Article 4(2) of Regulation (EC) No 882/2004 of the European
Parliament and of the Council of 29 April 2004 on official
controls performed to ensure the verification of compliance
with feed and food law, animal health and animal welfare rules
(OJ 2004 L 165, p. 1 as amended in OJ 2004 L 191, p. 1)
(‘Regulation 882/2004’) and the obligation to have a sufficient
number of properly qualified and experienced staff to be able
effectively to carry out the official controls, and secondly to
comply with the obligation laid down by the provisions of the
Community veterinary legislation relating to the financing of
the staff necessary to carry out
the prescribed veterinary
controls, the Hellenic Republic has failed to fulfil its obligations
under that legislation.

The Commission states that the Community veterinary legisla-
tion requires Member States to ensure that there are carried out
a substantial number of checks and controls relating to the
application of the prescribed conditions and requirements. Thus,
certain provisions,
in particular Article 4(2)(c) of Regulation
882/2004, lay down that Member States must have a sufficient
number of properly qualified and experienced staff to be able to
carry out the veterinary controls. Further, many of those provi-
sions either expressly provide that certain veterinary controls —
the procedures for implementation of which are more or less
detailed — must be carried out, or define the conditions and
specifications which presuppose the existence of veterinary
controls.

inspection reports
However, relying on a large number of
the
submitted by the Food and Veterinary Office (FVO) of
Commission,
the
the Commission states that on expiry of
period specified in the reasoned opinion and beyond that date,
and despite certain efforts of the Greek authorities, the Hellenic
Republic has not adopted all the measures necessary to remedy
the failings for which it has been criticised. Since 1998, the FVO
has made a large number of inspection visits to Greece, and has
found a serious shortage of staff in the services responsible for
carrying out the official controls prescribed by the Community
legislation, at all levels of administration. The shortage discov-
ered was such that, according to the Commission experts, the
official controls which are essential to the effective application
the Community legislation relating to animal protection
of
could not be carried out, the programmes to combat and eradi-
cate animal diseases have not been completed, and the rules
relating to animal welfare have not been complied with.