Case C-280/05: Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Incompatibility with the common market — Duty to recover — Non-fulfilment)
Date: 2007-12-06
Institutions: Court of Justice
Subjects: European Commission, Italy, State aid, action for failure to fulfil an obligation

C 22/2

EN

Official Journal of the European Union

26.1.2008

V

(Announcements)

COURT PROCEEDINGS

COURT OF JUSTICE

Judgment of the Court (First Chamber) of 6 December
2007 (reference for a preliminary ruling from the Tribunale
Amministrativo Regionale per la Lombardia (Italy) —
Federconsumatori, Adiconsum, ADOC, Ercole Pietro Zucca
(C-463/04) and Associazione Azionariato Diffuso dell'AEM
SpA, Filippo Cuccia, Giacomo Fragapane, Pietro Angelo
Sartorio
Puggioni, Annamaria

Sanchirico,

Sandro

(C-464/04) v Comune di Milano

(Joined Cases C-463/04 and C-464/04) (1)

(Article 56 EC — Free movement of capital — Restrictions —
Privatised undertakings — National provision under which
the Articles of association of a company limited by shares may
confer on the State or a public body holding shares in that
company the power to appoint directly one or more directors
to the board)

Operative part of the judgment

Article 56 EC must be interpreted as precluding a national provision,
such as Article 2449 of the Italian Civil Code, under which the Arti-
cles of association of a company limited by shares may confer on the
State or a public body with a shareholding in that company the power
to appoint directly one or more directors which, on its own or, as in
the main proceedings, in conjunction with a provision such as Article
4 of Decree Law No 332 of 31 May 1994, which became, after
amendment, Law No 474 of 30 July 1994, as amended by Law No
350 of 24 December 2003, which grants that State or public body
the right to participate in the election on the basis of lists of the direc-
tors it has not appointed directly, is such as to enable that State or
public body to obtain a power of control which is disproportionate to
its shareholding in that company.

(2008/C 22/02)

(1) OJ C 249, 14.10.2006.

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

(C-463/04)

Applicants: Federconsumatori, Adiconsum, ADOC, Ercole Pietro
and Associazione Azionariato Diffuso
Zucca
dell'AEM SpA, Filippo Cuccia, Giacomo Fragapane, Pietro
Angelo Puggioni, Annamaria Sanchirico, Sandro Sartorio
(C-464/04),

Defendant: Comune di Milano

Interested parties: AEM SpA (C-463/04 and C-464/04), Edison
SpA (C-463/04)

Re:

Reference for a preliminary ruling — Tribunale amministrativo
regionale per la Lombardia — Interpretation of Article 56 EC
— National law allowing public entities to appoint directors or
auditors in privatised undertakings — Application by a terri-
torial entity which retains a substantial holding in the privatised
undertaking.

Judgment of the Court (Third Chamber) of 6 December
the European Communities v
2007 — Commission of

Italian Republic

(Case C-280/05) (1)

(Failure of a Member State to fulfil obligations — State aid
— Incompatibility with the common market — Duty to
recover — Non-fulfilment)

(2008/C 22/03)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: V. Di Bucci and E. Righini, acting as Agents)

26.1.2008

EN

Official Journal of the European Union

C 22/3

Defendant: Italian Republic (represented by: I.M. Braguglia, acting
as Agent, and D. Del Gaizo, lawyer)

Parties to the main proceedings

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 2, 3 and 4 of Commission Decision 2004/800/EC of
30 March 2004 declaring incompatible with the common
market the aid scheme put into effect by Italy providing for
urgent measures to assist employment in firms in financial diffi-
least
culty,
1 000 employees (Aid No CR 62/2003, ex NN 7/2003 — Italy)
(OJ 2004 L 352, p. 10) — Failure to adopt, within the
prescribed period, the measures necessary to recover the aid
declared incompatible with the common market

administration,

having

special

and

in

at

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the
measures necessary to recover from the beneficiaries the aid declared
unlawful and incompatible with the common market by Commis-
sion Decision 2004/800/EC of 30 March 2004 on the State aid
scheme put into effect by Italy providing for urgent measures to
assist employment, the Italian Republic has failed to fulfil its obli-
gations under Articles 2 and 3 of that decision;

Applicant: Columbus Container Services BVBA & Co.

Defendant: Finanzamt Bielefeld-Innenstadt

Re:

Reference for a preliminary ruling — Finanzgericht Münster —
Interpretation of Articles 43 EC, 56 EC, 57 EC and 58 EC —
Freedom of establishment and free movement of capital —
Controlled-foreign-corporation income which is the designated
passive income of a foreign permanent establishment of a party
with unlimited liability to tax in Germany — National legisla-
tion offsetting the foreign tax on that income against national
tax, contrary to the provisions of the double taxation conven-
tion with Belgium, which provides for use of the method of
exemption from taxation

Operative part of the judgment

Articles 43 EC and 56 EC must be interpreted as not precluding tax
legislation of a Member State under which the income of a resident
national derived from capital invested in an establishment which has
its registered office in another Member State is, notwithstanding the
existence of a double taxation convention concluded with the Member
State in which the establishment has its registered office, not exempted
from national income tax but is subject to national taxation against
which the tax levied in the other Member State is set off.

2. orders the Italian Republic to pay the costs.

(1) OJ C 271, 29.10.2005.

(1) OJ C 229, 17.9.2005.

Judgment of the Court (First Chamber) of 6 December
a preliminary ruling from the
2007 (reference
Finanzgericht Münster (Germany)) — Columbus Container
Services BVBA & Co. v Finanzamt Bielefeld-Innenstadt

for

(Case C-298/05) (1)

(Articles 43 EC and 56 EC — Taxes on revenue and wealth
— Conditions for taxing the profits of an establishment situ-
ated in another Member State — Double taxation convention
— Methods of exempting or offsetting tax)

(2008/C 22/04)

Language of the case: German

Referring court

Finanzgericht Münster

Judgment of the Court (First Chamber) of 29 November
the European Communities v
2007 — Commission of

Republic of Austria

(Case C-393/05) (1)

(Regulation (EEC) No 2092/91 — Organic production of
agricultural products — Private inspection bodies — Require-
ment of an establishment or permanent infrastructure in the
Member State where the services are provided — Justifications
— Connection with the exercise of official authority —
Article 55 EC — Consumer protection)

(2008/C 22/05)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and G. Braun, acting as Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer,
Agent)