Case C-443/06: Judgment of the Court (Fourth Chamber) of 11 October 2007 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Erika Hollmann v Fazenda Pública (Direct taxation — Taxation of capital gains on immovable property — Free movement of capital — Basis of assessment — Discrimination — Cohesion of the tax system)
Date: 2007-12-08
Institutions: Court of Justice
Subjects: basis of tax assessment, discrimination on the basis of nationality, free movement of capital, free movement of persons, interpretation of the law, profit, tax on income

8.12.2007

EN

Official Journal of the European Union

C 297/15

2) Article 14(1) of Decision No 1/80 must be interpreted as not
precluding the taking of an expulsion measure against a Turkish
national who has been the subject of several criminal convictions,
provided that his behaviour constitutes a genuine and sufficiently
serious threat to a fundamental
interest of society. It is for the
national court to determine whether that is the case in the main
proceedings.

(1) OJ C 281, 18.11.2006.

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 249 of 14.10.2006.

Judgment of the Court (Fourth Chamber) of 11 October
2007 (reference for a preliminary ruling from the Supremo
Tribunal Administrativo — Portugal) — Erika Hollmann v
Fazenda Pública

(Case C-443/06) (1)

Judgment of the Court (Fifth Chamber) of 27 September
the European Communities v
2007 — Commission of

Grand Duchy of Luxembourg

(Direct taxation — Taxation of capital gains on immovable
property — Free movement of capital — Basis of assessment
— Discrimination — Cohesion of the tax system)

(Case C-354/06) (1)

(Failure of Member State to fulfil obligations — Protection of
the environment — Access to justice)

(2007/C 297/23)

Language of the case: Portuguese

(2007/C 297/22)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Hottiaux and F. Simonetti, agents, acting as Agent
(s))

Defendant: Grand Duchy of Luxembourg (represented by: C.
Schiltz, agent.)

Re:

Failure of Member State to fulfil obligations — Failure to take
within the prescribed period the measures necessary to comply
with Directive 2003/35/EC of the European Parliament and of
the Council of 26 May 2003 providing for public participation
in respect of the drawing up of certain plans and programmes
relating to the environment and amending with regard to public
participation
justice Council Directives
to
access
85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17)

and

Operative part of the judgment

The Court:

1. Declares that by failing to take in the prescribed period all the
legislative regulatory and administrative measures necessary to
comply with Directive 2003/35/EC of the European Parliament
and of the Council of 26 May 2003 providing for public partici-
pation in respect of
certain plans and
programmes relating to the environment and amending with regard
to public participation and access to justice Council Directives
85/337/EEC and 96/61/EC, the Grand Duchy of Luxembourg
has failed to fulfil its obligations under that directive;

the drawing up of

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Erika Hollmann

Defendant: Fazenda Pública

Intervener: Ministério Público

Re:

Reference for a preliminary ruling — Supremo Tribunal Admin-
istrativo — Interpretation of Articles 12 EC, 18 EC, 39 EC,
43 EC and 56 EC — Taxation of capital gains realised on the
transfer for valuable consideration of real property — Exclusion
from the part exemption provided for for persons residing in
Portugal of capital gains realised on such transfers made by
persons residing in another Member State

Operative part of the judgment

Article 56 EC must be interpreted as precluding national legislation,
such as that in dispute in the main proceedings, which subjects capital
gains resulting from the transfer of immovable property situated in a
Member State, in this case Portugal, where that transfer is made by a
resident of another Member State, to a tax burden greater than that
which would be applicable for the same type of transaction to capital
gains realised by a resident of the State in which that immovable prop-
erty is situated.

(1) OJ C 326, 30.12.2006.