Case C-105/08: Action brought on 6 March 2008 — Commission of the European Communities v Portuguese Republic
Date: 2008-03-06
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, credit, financial institution, interest, provision of services, tax system

9.5.2008

EN

Official Journal of the European Union

C 116/15

(d) in Article 3(1)(a) of Directive 2004/25/EC of 21 April
2004 on takeover bids, read together with the eight
recital in the preamble thereto (4)

manifestations of a general principle of Community law and
did that general principle exist as such before the adoption
of Directive 2004/25/EC?

2. Does that general principle of Community law apply only to
the relations between a company and its shareholders or, on
the contrary, does it also apply to the relations between
majority shareholders exercising or acquiring control of a
company and the minority shareholders of that company?

3. If the answer to the foregoing two questions is in the affir-
mative, must that general principle of Community law be
regarded, having regard to the development in time of the
references referred to in Question 1, as having existed and
being binding on the relations between majority and
minority shareholders within the meaning of Question 2
before the entry into force of the abovementioned Directive
2004/25/EC and before the facts at issue, which occurred
during the first half of 2001?

(1) Second Council Directive 77/91/EEC of 13 December 1976 on coor-
dination of safeguards which, for the protection of the interests of
members and others, are required by Member States of companies
within the meaning of the second paragraph of Article 58 of the
Treaty, in respect of the formation of public limited liability compa-
nies and the maintenance and alteration of their capital, with a view
to making such safeguards equivalent (OJ 1977 L 26, p. 1).

(2) OJ 1977 L 212 p. 37.
(3) OJ 1979 L 66, p. 21.
(4) OJ 2004 L 142, p. 12.

territory,

the Portuguese Republic

Portuguese
imposes
restrictions on the provision of mortgage and other loan
services by financial institutions resident in other Member
States and in States party to the EEA Agreement, and it has
therefore failed to fulfil its obligations under Articles 49 EC
and 56 EC and Articles 36 and 40 of the EEA Agreement;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The Código do Imposto sobre o Rendimento das Pessoas Colec-
tivas (CIRC) (the Corporation Tax Code) provides for different
tax treatment of income relating to interest paid to financial
institutions, depending on whether they are resident or not in
Portuguese territory.

The taxation applicable in Portugal to interest paid to non-resi-
dent financial institutions leads to a far heavier real tax burden
taxpayers in respect of similar
than that borne by resident
income. The national
legislation thus dissuades non-resident
financial institutions from offering their services on the Portu-
guese market, in particular mortgage loan services, and prevents
persons resident in Portugal from gaining access to the loan
services that might be offered them by those institutions. Such
legislation therefore constitutes a restriction of the fundamental
freedoms enshrined in Articles 49 EC and 56 EC and in the
corresponding provisions of the EEA Agreement.

Action brought on 10 March 2008 — Commission of the
European Communities v Hellenic Republic

Action brought on 6 March 2008 — Commission of the
European Communities v Portuguese Republic

(Case C-105/08)

(2008/C 116/26)

Language of the case: Portuguese

Parties

(Case C-109/08)

(2008/C 116/27)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: Maria Patakia)

Applicant: Commission of the European Communities (repre-
sented by R. Lyal and M. Afonso, Agents)

Defendant: Hellenic Republic

Defendant: Portuguese Republic

Form of order sought

— A declaration that, by taxing payment of interest abroad
more heavily than payment of interest to entities resident in

Form of order sought

— declare that, by failing to take the necessary measures to
comply with the judgment delivered by the Court of Justice
on 26 October 2006 in Case C-65/05, the Hellenic Republic
has failed to fulfil its obligations under Articles 28 EC, 43
EC and 49 EC and Article 8 of Directive 98/34/EC (1);