Case C-405/07 P: Appeal brought on 3 September 2007 by the Kingdom of the Netherlands against the judgment delivered by the Court of First Instance (Fourth Chamber) on 27 June 2007 in Case T-182/06 Kingdom of the Netherlands v Commission of the European Communities
Date: 2007-11-10
Institutions: Court of Justice
Subjects: EU law - national law, European Commission, Netherlands, action for annulment (EU), air quality, derogation from EU law, diesel engine, motor vehicle

10.11.2007

EN

Official Journal of the European Union

C 269/33

Action brought on 29 August 2007 — Commission of the
European Communities v Kingdom of the Netherlands

(Case C-401/07)

(2007/C 269/56)

Language of the case: Dutch

does not undo the financial advantage that Fleuren has enjoyed
for years as a result of the fact that the defendant has paid aid
to Fleuren without
the Commission's approval, contrary to
Article 88(3) EC.

(1) OJ 2001 L 189, p. 13.
(2) OJ 1999 L 83, p. 1.

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. van Vliet, acting as Agent)

Defendant: Kingdom of the Netherlands

Form of order sought

— Declare that, by failing to implement, with regard to Fleuren
Compost BV, Commission Decision 2001/521/EC of
13 December 2000 on the aid scheme implemented by the
the Netherlands for six manure-processing
Kingdom of
companies (1) within the period laid down therein,
the
Kingdom of the Netherlands has failed to fulfil its obliga-
tions under the fourth paragraph of Article 249 EC and
Articles 2 and 3 of that decision;

— order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

In Decision 2001/521 the Commission decided that
the
Netherlands should recover from Fleuren Compost BV (‘Fleuren’)
unlawful aid in the amount of EUR 487 328,13, plus interest.
At the time when the application was lodged in this case, the
resultant sum had not yet been repaid. So far, Fleuren has
merely provided a bank guarantee for the sum. The applicant
submits that this is contrary to Article 13(3) of Council Regu-
lation (EC) No 659/1999 of 22 March 1999 laying down
detailed rules
the
EC Treaty (2), which provides for immediate and effective execu-
tion of the Commission's decision. Moreover, by judgment of
14 January 2004 the Court of First Instance dismissed Fleuren's
action against the decision (Case T-109/01) and Fleuren has not
appealed against that judgment.

the application of Article 93 of

for

execution

unnecessarily

The applicant submits, inter alia, that the Netherlands legislation
in question, as interpreted by the Netherlands Raad van State,
makes
time
consuming. According to that interpretation, the principal sum
is to be recovered in an administrative proceedings but interest
is to be recovered in civil proceedings. The applicant submits
also that the provision of a bank guarantee cannot be compared
to the actual repayment of the amount of aid. A bank guarantee

complicated

and

Appeal brought on 3 September 2007 by the Kingdom of
the Netherlands against the judgment delivered by the
Court of First Instance (Fourth Chamber) on 27 June 2007
the Netherlands v
in Case T-182/06 Kingdom of

Commission of the European Communities

(Case C-405/07 P)

(2007/C 269/57)

Language of the case: Dutch

Parties

Appellant: Kingdom of the Netherlands (represented by: D.J.M.
de Grave and C.M. Wissels, Agents)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Set aside the judgment under appeal;

— Refer the case back to the Court of First Instance in order

that it may rule on the other pleas in law;

— Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant puts forward two pleas in support of its appeal.

By its first plea, the appellant submits that the Court of First
Instance misconstrued the duty of care and the duty to give
reasons pursuant to Article 253 EC in ruling that the Commis-
sion had not breached those duties in the case where relevant
information supplied by the Member State concerned prior to
the contested decision (1) was, without specific reasons, left out
of account in that decision.

C 269/34

EN

Official Journal of the European Union

10.11.2007

By its second plea, the appellant submits that the Court of First
Instance applied incorrect legal criteria when it ruled,
in the
context of the examination into whether there was a specific
problem within the terms of Article 95(5) EC, that:

(i) the existence of a specific problem with regard to air
quality must be examined solely on the basis of
the
criteria in Directive 1999/30/EC (2), without the impossi-
bility for a Member State to adopt measures designed to
prevent cross-border pollution and criteria such as high
demographic density, vehicle traffic intensity in many areas
and the location of residential areas along traffic routes
being capable of having relevance in that regard; and

(ii) there can be no question of a specific problem in the afore-
mentioned sense if a very small number of Member States
also are experiencing a problem in connection with air
quality.

(1) Commission Decision 2006/372/EC of 3 May 2006 concerning
draft national provisions notified by the Kingdom of the Netherlands
under Article 95(5) of the EC Treaty laying down limits on the emis-
sions of particulate matter by diesel-powered vehicles (OJ 2006
L 142, p. 16).

(2) Council Directive of 22 April 1999 relating to limit values for
sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate
matter and lead in ambient air (OJ 1999 L 163, p. 41).

Action brought on 4 September 2007 — Commission of
the European Communities v Hellenic Republic

(Case C-406/07)

(2007/C 269/58)

Language of the case: Greek

(a) its obligations under Articles 56 and 43 of the Treaty
establishing the European Community and Articles 40
and 31 of the EEA Agreement, in applying a tax regime
for dividends from abroad that is less favourable than
the regime for domestic dividends;

(b) its obligations under Article 43 of the Treaty establishing
the European Community and Article 31 of the EEA
Agreement in maintaining in force the provisions of the
Kodika Forologias Eisodimatos (Income Tax Code) (Law
2238/1994, as last amended by Law 3296/2004), by
which foreign partnerships in Greece are taxed more
heavily than domestic partnerships;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that the Member States may not tax
dividends from abroad at a higher rate than that applicable to
domestic dividends.

The tax exemption provided for by Greek tax legislation is
aimed at avoiding the double taxation of company profits
distributed to shareholders, but is applied only to domestic divi-
dends.

The Greek tax legislation accordingly results in discouraging
persons subject to full tax obligations in Greece from investing
their capital in companies established in another Member State.

The provisions of the Greek legislation also have a restrictive
effect in relation to companies established in another Member
State, since it constitutes an obstacle to the centralising of
capital in Greece by such companies.

Since income from capital of non-Greek origin receives less
favourable tax treatment than dividends distributed by compa-
nies established in Greece, the shares of companies established
in other Member States are less attractive to investors resident in
Greece than the shares of companies whose seat is in Greece.

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Triandafillou, acting as Agent)

It follows from the above that legislative provisions such as that
under scrutiny constitute a restriction on the free movement of
capital which, in principle, is prohibited by Article 56 EC.

Defendant: Hellenic Republic

Form of order sought

The Court is asked to

— declare that the Hellenic Republic is in breach of

In the case of persons who are subject to full tax obligations in
Greece and who hold foreign shares which afford them the
possibility of exercising a manifest influence on the decisions of
the undertaking and determining its activities, it is similarly a
restriction on freedom of establishment which is prohibited by
Article 43 EC.