Case C-540/07: Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic
Date: 2007-11-30
Institutions: Court of Justice
Subjects: action for failure to fulfil an obligation, free movement of capital, organisation, right of establishment, tax on capital, tax system

9.2.2008

EN

Official Journal of the European Union

C 37/17

Question referred

Action brought on 30 November 2007 — Commission of
the European Communities v Italian Republic

Does Article 29 of Directive 92/50/EEC (1),
in laying down
for exclusion from participation in service
seven grounds
contracts, give an exhaustive list of cases of exclusion and there-
fore preclude Article 10(1 bis) of Law No 109/94 (now replaced
by Article 34, last paragraph, of Legislative Decree No 136/86)
from imposing a prohibition on simultaneous participation in a
tendering procedure of undertakings which are linked by a rela-
tionship of control?

(1) OJ L 1992 209, p. 1.

(Case C-540/07)

(2008/C 37/24)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and A. Aresu, acting as Agents)

Defendant: Italian Republic

Form of order sought

Action brought on 30 November 2007 — Commission of
the European Communities v Italian Republic

The applicant claims that the Court should:

(Case C-539/07)

(2008/C 37/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Montaguti and A. Nijenhuis, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by failing, for all calls to the single European
emergency call number ‘112’, to make call-tracing informa-
tion available, within the limits of technical feasibility, to the
authorities called upon to act in cases of emergency, the
Italian Republic has failed to fulfil
its obligations under
Article 26(3) of Directive 2002/22/EC (1);

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposing Directive 2002/22/EC expired on
24 July 2003.

(1) Directive 2002/22/EC of

the
Council of 7 March 2002 on universal service and users' rights
relating to electronic
and services
communications networks
(Universal Service Directive) (OJ 2002 L 108, p. 51).

the European Parliament and of

— declare that, by keeping in force a tax system which is more
onerous for dividends distributed to companies established
in the other Member States and in the States Party to the
Agreement on the European Economic Area compared to
that applied to domestic dividends, the Italian Republic has
failed to fulfil its obligations under Articles 56 EC and 40 of
the Agreement on the European Economic Area concerning
the free movement of capital between the Member States
and that between the States Party to the agreement in ques-
tion, as well as its obligations under Article 33 of that agree-
ment in relation to the freedom of establishment between
the States Party to that agreement;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The European Commission refers to the Italian legislation in
force in the matter, also that under the Treaty, which subjects
the distribution of dividends to non-Italian companies (outgoing
dividends) to tax treatment which is significantly less favourable
than that applied to the distribution of dividends to Italian
companies (domestic dividends).

The European Commission submits that such legislation, which,
however, the Italian Government is about to amend, is contrary
to the principle of the free movement of capital, since it has a
negative effect on the profits and investment decisions of
non-resident shareholders in Italian companies, making it, at the
same time, more difficult for the same Italian companies to raise
capital abroad. It should therefore be declared to be a clear
infringement of Article 56 EC, which prohibits any restriction
on the free movement of capital between the Member States,
and of Article 40 of the Agreement on the European Economic
Area (EEA Agreement), which governs in a similar manner the
same free movement between the States Party to that agree-
ment.

Moreover, in the European Commission's submission, such legis-
lation may also conflict with the right of establishment as laid
down by Article 31 of the EEA Agreement, since it is applicable
also to controlling shareholdings in Italian companies owned by
companies established in the States Party to that agreement,
shareholdings for which their tax system harmonised to Com-
munity Directive 90/435/EEC (1) does not apply.

C 37/18

EN

Official Journal of the European Union

9.2.2008

In the course of the procedure for infringement, the European
Commission has had the opportunity of examining the Italian
Republic's arguments in defence justifying the legislation in
they do not do so. Recently
question, but considers that
however the Italian Government announced its own intention
to amend the said legislation by making it compliant with the
Community directive. This action may accelerate such process
of reform.

(1) OJ 1990 L 225, p. 6.

‘Application’) does not offend against either Article 7(1)(b) or
7(1)(c) of Council Regulation No 40/94 as it has acquired a
distinctive character
is
submitted that the Court of First Instance erred in its analysis of
the relevant law; in particular, it erred when it failed to hold
that use after the filing date was relevant when considering the
issue of acquired distinctiveness.

since the Application was

filed.

It

Accordingly, the Court of First Instance was wrong to dismiss
the appeal before it. Hence,
it is submitted that this appeal
against the judgment of the Court of First Instance ought to be
allowed and its Judgment set aside. The Appellant also seeks its
costs in these appeal proceedings and in the proceedings before
the Court of First Instance.

Appeal brought on 30 November 2007 by Imagination
Technologies Ltd against the judgment of the Court of First
Instance (Third Chamber) delivered on 20 September 2007
in Case T-461/04: Imagination Technologies Ltd v Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM)

Action brought on 3 December 2007 — Commission of
the European Communities v Kingdom of Belgium

(Case C-542/07 P)

(2008/C 37/25)

Language of the case: English

(Case C-543/07)

(2008/C 37/26)

Language of the case: Dutch

Parties

Appellant:
Edenborough, Barrister)

Imagination Technologies Ltd (represented by: M.

Parties

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

Applicant: Commission of the European Communities (repre-
sented by: M. van Beek, Agent)

Defendant: Kingdom of Belgium

Form of order sought

The appellant claims that the Court should:

Form of order sought

— set aside the judgment of the Court of First Instance.

— make an order for costs of and associated with this appeal
before the Court of Justice and its appeal before the Court
of First Instance.

Pleas in law and main arguments

the European Parliament and of

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2002/73/EC (1) of
the
Council of 23 September 2002 amending Council Directive
76/207/EEC on the implementation of the principle of equal
treatment for men and women as regards access to employ-
ment, vocational
training and promotion, and working
conditions, or in any event by not communicating such
measures to the Commission, the Kingdom of Belgium has
failed to fulfil its obligations under that directive;

The Appellant submits that the Community trade mark applica-
tion No 2396075 for the word mark PURE DIGITAL (the

— order the Kingdom of Belgium to pay the costs.