Case C-562/07: Action brought on 19 December 2007 — Commission of the European Communities v Kingdom of Spain
Date: 2007-12-19
Institutions: Court of Justice
Subjects: European Commission, Spain, action for annulment (EU), discrimination on the basis of nationality, personal income tax, tax system

C 64/22

EN

Official Journal of the European Union

8.3.2008

Defendant: Italian Republic

government has none the less maintained that in the present
case Article 5(3) of the directive applies.

Form of order sought

— declare that, by maintaining in force the provisions of
Article 47(5) and (6) of Law No 428 of 29 December 1990
in the event of corporate crisis according to (c) of the fifth
paragraph of Article 2 of Law No 675 of 12 August 1977
so that the rights of employees set out in Articles 3 and 4 of
Directive 2001/23/EC are not safeguarded in the event of
transfers of undertakings in which a ‘situation of crisis’ has
been ascertained, the Italian Republic has failed to fulfil its
obligations under that directive;

— order the Italian Republic to pay the costs.

The Commission has noted in the application that that provi-
sion does allow, in the event of a transfer of an undertaking in
which the transferor is in a situation of serious economic crisis,
to amend the employment conditions of the employees in order
to safeguard employment opportunities, ensuring the survival of
the undertaking, the business or parts of the undertaking or
business. However,
that provision entitles the Member State
only to allow the transferor and the employees' representatives
to agree to amend the employment conditions in certain
circumstances and not to exclude, as Article 47(5) and (6) of
Law No 428/90 do, the application of Articles 3 and 4 of the
directive.

(1) OJ 2001 L 82, p. 16.

Pleas in law and main arguments

Action brought on 19 December 2007 — Commission of
the European Communities v Kingdom of Spain

that

and (6))

the provisions of Law
The Commission considers
No 428/1990 (Article 47(5)
infringe Directive
2001/23/EC of 12 March 2001 on the approximation of the
laws of
the Member States relating to the safeguarding of
employees' rights in the event of transfers of undertakings, busi-
nesses or parts of undertakings or businesses (1), since the
employees of the undertaking admitted to the system of the
extraordinary redundancy fund transferred to the acquiror lose
the rights provided for by Article 2112 of the Civil Code, except
for any guarantees provided for by the union agreement (‘the
most favoured treatment’ set out in Article 47(5)).

(Case C-562/07)

(2008/C 64/33)

Language of the case: Spanish

That means that the employees of an undertaking admitted to
the redundancy fund system (CIGS) for a situation of crisis do
not receive, in the event of a transfer of the undertaking, the
safeguards provided for in Articles 3 and 4 of the Directive.

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and I. Martinez del Peral Cagigal, agents)

that

that provides

So far as concerns Article 47(6),
the
employees who do not become employees of the acquiror, the
lessee or the new employer are entitled to priority in the recruit-
ment carried out by the latter for a year from the date of the
transfer, or for a longer period laid down by collective agree-
ments. Article 2112 of the Civil Code does not apply to those
workers who are recruited by the acquiror,
lessee or new
employer after the transfer of the undertaking.

Defendant: Kingdom of Spain

Form of order sought

The Italian Government has not challenged the Commission's
analysis on the basis of which the employees of the undertaking
admitted to the CIGS system for situation of crisis do not
receive, in the event of a transfer of the undertaking, the safe-
guards laid down in Articles 3 and 4 of the directive. That

— Declare that by treating differently capital gains obtained in
Spain by non-residents from those obtained by residents
until 31 December 2006, the Kingdom of Spain failed to
fulfil its obligations under Articles 39 and 56 EC and Arti-
cles 28 and 40 of the EEA Agreement;

— Order the Kingdom of Spain to pay the costs.

8.3.2008

EN

Official Journal of the European Union

C 64/23

Pleas in law and main arguments

Form of order sought

Under the Spanish legislation in force until 31 December 2006,
the taxation of capital gains of non-residents was subject to a
proportional rate of 35 %, while that of residents was subject to
a progressive schedule if the capital assets remained their prop-
erty for a period of less than one year, and to a proportional
rate of 15 % if the period of ownership exceeded one year.
Consequently, the tax burden borne by non-residents if they
sold their assets after the lapse of one year following acquisition
was always greater. In the event of disposal of assets within the
year following acquisition, non-residents also bore a greater tax
burden, except when the average rate applied to resident
taxpayers exceeded 35 % (which would imply very considerable
capital gains).

The Commission considers that there is no objective difference
between the situations of those two categories of taxpayers, so
that the higher tax burden on non-residents is discrimination
which unlawfully restricts freedom of movement for workers
and the free movement of capital provided for in Articles 39
and 56 EC and Articles 28 and 40 of the EEA Agreement.

— Set aside the judgment of the Court of First Instance of

18 October 2007.

— Order the defendant and defendant on appeal to pay the

costs incurred both at first instance and on appeal.

Pleas in law and main arguments

The appeal is based on an infringement of Community law by
the Court of First Instance. It was not until the proceedings
before the Board of Appeal that the Court of First Instance
refused to uphold the appellant's request for the opponent to
prove the use of its mark. The Court of First Instance thereby
misconceived the principle of continuity in terms of functions
between OHIM departments and infringed Article 43(2) and (3)
and Article 74 of Regulation No 40/94.

Pursuant to the principle of continuity in terms of functions
between OHIM departments the Board of Appeal should have
based its decision on all of the claims made by the appellant
both in the proceedings before the Opposition Division and
those before the Board of Appeal.

Appeal brought on 31 December 2007 by AMS Advanced
Medical Services GmbH against the judgment of the Court
of First Instance (Fifth Chamber) delivered on 18 October
2007 in Case T-425/03 AMS Advanced Medical Services
GmbH v Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case C-565/07 P)

(2008/C 64/34)

Language of the case: German

Reference for a preliminary ruling from the Hoge Raad der
2007 —
Nederlanden

21 December

lodged

on

Staatssecretaris van Financiën v Stadeco BV

(Case C-566/07)

(2008/C 64/35)

Language of the case: Dutch

Parties

Referring court

Hoge Raad der Nederlanden

Appellant: AMS Advanced Medical Services GmbH (represented
by: S. Schäffler, Rechtsanwältin)

Parties to the main proceedings

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), American Medical
Systems, Inc.

Respondent: Stadeco BV

Appellant: Staatssecretaris van Financiën