Case C-521/07: Action brought on 23 November 2007 — Commission of the European Communities v Kingdom of the Netherlands
Date: 2007-11-23
Institutions: Court of Justice
Subjects: European Commission, Iceland, Netherlands, Norway, action for failure to fulfil an obligation, free movement of capital, tax on investment income

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?