Case C-519/07 P: Appeal brought on 22 November 2007 by Commission of the European Communities against the judgment delivered on 12 September 2007 by the Court of First Instance (Second Chamber) in Case T-348/03 Koninklijke Friesland Foods NV (formerly Friesland Coberco Dairy Foods Holding NV) v Commission of the European Communities
Date: 2007-11-22
Institutions: Court of Justice
Subjects: Netherlands, State aid, aid system, aid to undertakings, appeal, corporation tax, tax system

9.2.2008

EN

Official Journal of the European Union

C 37/9

directive to ensure the ‘complete independence’ of the supervisory
authorities. Irrespective of the differences between legal, tech-
nical and administrative supervision, all these types of supervi-
sion constitute an infringement of the independence required by
the directive.

From a teleological point of view, the Community legislature
regarded complete independence as necessary so that the func-
tions which the supervisory authority was intended to have
under Article 28 of the Directive could be carried out effectively.
Furthermore, light is also shed on the concept of ‘complete inde-
pendence’ by the legislative background to the provision. The
requirement of ‘complete independence’ of the supervisory authori-
ties of the Member States also fits in systematically with the
Community acquis existing in the area of data protection law. In
addition, Article 8 of the Charter of Fundamental Rights of the
European Union requires that compliance with the rules on the
protection of personal data must be ‘subject to control by an
independent authority’.

The concept of relative independence advocated by the Federal
Republic of Germany, that is to say, the independence of the
supervisory authority only from that which is being supervised,
cannot in any event be brought into conformity with the unam-
biguous, comprehensive wording of the directive, which requires
‘complete’ independence. In addition, on that interpretation, the
second sentence of Article 28(1) would be completely meaning-
less. Furthermore, the argument that Article 95 EC, as the rele-
vant legal basis for the directive, and the principles of subsi-
diarity and proportionality suggest a restrictive interpretation of
the requirement of ‘complete independence’ must be rejected. The
Court has already held that the directive was adopted in accord-
ance with the areas of competence of the European Parliament
and of the Council and that a restrictive interpretation of its
provisions in non-economic situations is out of the question.
Furthermore, the provision which is at issue does not exceed the
limits of that which is necessary to achieve the objectives which
the directive, in accordance with Article 95 EC and the principle
of subsidiarity, pursues.

(1) OJ 1995 L 281, p. 31.

Appeal brought on 22 November 2007 by Commission of
the European Communities against the judgment delivered
on 12 September 2007 by the Court of First Instance
(Second Chamber) in Case T-348/03 Koninklijke Friesland
Foods NV (formerly Friesland Coberco Dairy Foods
Holding NV) v Commission of the European Communities

(Case C-519/07 P)

(2008/C 37/11)

Language of the case: Dutch

Other party to the proceedings: Koninklijke Friesland Foods NV
(formerly Friesland Coberco Dairy Foods Holding NV)

Form of order sought

— Set aside the judgment under appeal, dismiss the action for
annulment of
and order Koninklijke
Friesland Foods NV (KFF) to pay the costs of the proceedings
before the Court of First Instance and of the present appeal;

the decision (1)

— in the alternative, set aside the judgment under appeal in so
far as it grants rights to operators in the market — other
than Koninklijke Friesland Foods NV — who, as at 11 July
2001, had lodged a request with the Netherlands tax
authority for application of the aid scheme in question, and
dismiss the action for annulment of the decision in so far as
it relates to the grant of rights to operators in the market —
other than KFF — who, as at 11 July 2001, had lodged a
request for application of the aid scheme in question.

Pleas in law and main arguments

The Commission takes the view that the Court of First Instance
has infringed Community law:

(i) by concluding that KFF has a legal

interest in bringing
proceedings because, if its action were to succeed, it would
have certain claims against the Netherlands authorities in
respect of the GFA scheme (judgment under appeal, para-
graphs 58 to 73);

(ii) by concluding that KFF

is directly and individually
concerned by the decision (judgment under appeal, para-
graphs 93 to 101);

(iii) by annulling the decision on the basis of facts which were
not, and could not have been, known to the Commission
when it took its decision, namely KFF's actual circumstances
(judgment under appeal,
in particular, paragraphs 141
to 143);

(iv) Part 1: by manifestly incorrectly regarding as undisputed —
and thus proven — a matter of crucial importance for the
Court's reasoning (erroneously proceeding on the basis that
the Commission did not dispute that the applicant had
taken accounting measures and financial and economic
decisions which could not have been amended within a
period of fifteen months)
(judgment under appeal, para-
graph 137);

Part 2: by concluding that an undertaking which has merely
lodged a request to be able to benefit from the aid scheme
can have legitimate expectations (judgment under appeal, in
particular, paragraphs 125 to 140);

Parties

Appellant: Commission of the European Communities (repre-
sented by: H. van Vliet and S. Noë)

(v) by concluding that KFF is entitled to rely on the principle
of equal treatment (judgment under appeal, paragraphs 149
and 150);

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?