Case C-522/07: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 22 November 2007 — Dinter GmbH v Hauptzollamt Düsseldorf
Date: 2007-11-22
Institutions: Court of Justice
Subjects: Combined Nomenclature, fruit juice, interpretation of the law, sugar

C 37/10

EN

Official Journal of the European Union

9.2.2008

(vi) in the alternative: the Court should set aside the judgment
under appeal in so far as it grants rights to operators in the
market other than KFF (judgment under appeal, operative
part, point 1).

(1) Commission Decision 2003/515/EC of 17 February 2003 on the
State aid implemented by the Netherlands for international financing
activities (OJ 2003 L 180, p. 52).

Action brought on 23 November 2007 — Commission of
the European Communities v Kingdom of the Netherlands

(Case C-521/07)

(2008/C 37/12)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: P. van Nuffel and R. Lyal, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

in essence,

a provision which,

Article 40 of
the Agreement on the European Economic
Area (1) (‘the EEA Agreement’) concerning the free movement of
capital,
to
Article 56 EC. The situation of Norwegian and Icelandic compa-
nies which have stakes in the capital of a Netherlands company
is in fact objectively comparable to that of a Netherlands
company holding such a stake. The Netherlands rules cannot be
justified. Whilst it true that Member States may take measures
to prevent abuse, those measures must none the less be propor-
tionate to the objective pursued, which is not the case here.

corresponds

(1) OJ L 1, 3.1.1994.

Reference for a preliminary ruling from the Finanzgericht
Düsseldorf (Germany) lodged on 22 November 2007 —
Dinter GmbH v Hauptzollamt Düsseldorf

(Case C-522/07)

(2008/C 37/13)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

— Declare that, by not exempting dividends paid to companies
established in Norway or Iceland from withholding tax on
dividends under the same conditions as dividends paid to
Netherlands companies, the Kingdom of the Netherlands has
failed to fulfil its obligations under Article 40 of the EEA
Agreement.

Parties to the main proceedings

Applicant: Dinter GmbH

— order the Kingdom of the Netherlands to pay the costs.

Defendant: Hauptzollamt Düsseldorf

Pleas in law and main arguments

Questions referred

According to Netherlands tax law, tax on dividends is not with-
held when a Netherlands company pays a dividend to another
company established in the Netherlands which holds at least
5 % of the shares of the company which pays the dividend; by
contrast the tax on dividends is withheld when the company
which receives the dividend is established in Norway or Iceland,
unless the receiving company owns at least 25 % (Norway) or
10 % (Iceland) of the shares in the Netherlands company which
pays the dividend.

The Commission takes the view that Netherlands tax law thus
gives rise to discrimination between companies established in
Norway or Iceland and those established in the Netherlands.
That constitutes a restriction on the free movement of capital
between the Netherlands and Norway and Iceland, contrary to

1. Is additional note 5(b)

to Chapter 20 of

the Combined
Nomenclature (1) to be interpreted as meaning that the term
‘fruit juices with added sugar’ also refers to fruit juices to
which no sugar has actually been added, but whose added
sugar content
is calculated mathematically in accordance
with additional note 5(a) to Chapter 20 of the Combined
Nomenclature?

2. Is additional note 5(b)

to Chapter 20 of

the Combined
Nomenclature to be interpreted as meaning that the term
‘fruit juices in their natural state’ is merely clarified by the
words ‘obtained from fruits or by dilution of concentrated
juice’, but in fact applies to all types of fruit juices (not
cooked and without added alcohol) in the state in which
they are presented?

9.2.2008

EN

Official Journal of the European Union

C 37/11

3. If both the preceding questions are answered in the affirma-
tive, is additional note 5(b) to Chapter 20 of the Combined
Nomenclature valid?

vehicles of the same construction which have already been regis-
tered in Austria are exempt from those requirements in cases of
re-registration. The Republic of Austria has therefore failed to
fulfil its obligations under Articles 28 EC and 30 EC.

(1) Commission Regulation (EC) No 1810/2004 of 7 September 2004
amending Annex I to Council Regulation (EEC) No 2658/87 on the
tariff and statistical nomenclature and on the Common Customs
Tariff (OJ 2004 L 327, p. 1).

Action brought on 26 November 2007 — Commission of
the European Communities v Republic of Austria

(Case C-524/07)

(2008/C 37/14)

Language of the case: German

Parties

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

Defendant: Republic of Austria

Form of order sought

— Declare that, by not registering as a matter of principle older
imported used vehicles which were registered in another
Member State, but do not comply with certain Austrian
provisions on exhaust emissions and noise protection,
whereas vehicles of
the same construction which have
already been registered in Austria are exempt from those
requirements in cases of re-registration,
the Republic of
Austria has failed to fulfil its obligations under Articles 28 EC
and 30 EC;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Under Article 28 EC, quantitative restrictions on imports and all
measures having equivalent effect are prohibited between
Member States. All rules or measures enacted by Member States
which are capable of hindering, directly or indirectly, actually or
intra-Community trade are to be considered as
potentially,
measures having an equivalent effect to quantitative restrictions.

Under the provisions of the Austrian Law on Motor Vehicles,
older imported used cars which were registered in another
Member State, but do not comply with certain Austrian provi-
sions on exhaust emissions and noise protection, are not, as a
matter of principle, granted registration in Austria, although

National rules which make the first registration in that Member
State of motor vehicles which have previously been registered in
another Member State contingent upon compliance with certain
limits in respect of noise and exhaust emissions, which are
stricter than the applicable provisions of secondary Community
law, are capable of restricting intra-Community trade. In addi-
tion, that restriction on trade constitutes discrimination against
foreign products as the stricter limits do not have to be
complied with by domestic used vehicles, which are re-registered
after a change of owner. Furthermore, the Austrian provisions
do not make provision for registered vehicles to be taken off the
road if they do not comply with the limits in respect of exhaust
emissions and noise protection, which are applied in respect of
single vehicle approvals of imported vehicles.

The applicability of the Treaty provisions on the free movement
of goods is not precluded in the present case by other specific
rules. First, the provisions of Directive 93/59/EEC and Directive
92/97/EEC, which establish certain standards for emissions and
noise and to which Austrian law refers with regard to the limits
to be complied with, do not apply to vehicles which were
brought into circulation in a Member State before the respective
dates specified in those directives. Secondly, point 1 of Annex II
to the EEA Agreement cannot be used to assess situations
which, like the import of a motor vehicle from another Member
State into Austria at a time when both Austria and the other
Member State belonged to the Community, are covered exclu-
sively by Community law.

Restrictions on intra-Community trade may be justified on the
grounds specifically mentioned in Article 30 EC or on other
overriding grounds of public interest. The rules in question
must be suitable, necessary and proportionate and the restric-
tions must not constitute a means of arbitrary discrimination or
a disguised restriction on trade between Member States.

There is, however, no such justification for the restriction on
trade in the present case. It is not possible to rely on grounds of
health or environmental protection in order to refuse to register
imported vehicles if the re-registration of used vehicles of the
same construction which have already been registered in Austria
is not refused on those grounds. In addition, according to the
Commission, there are less restrictive measures which may be
used to ensure the transition to vehicles which are more favour-
able in terms of emission and noise. The achievement of health
and environmental protection objectives exclusively to the detri-
ment of imported vehicles is not, however, compatible with the
principles of the free movement of goods.