Case C-109/08: Action brought on 10 March 2008 — Commission of the European Communities v Hellenic Republic
Date: 2008-03-10
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, free movement of goods, gaming, judgment of the Court (EU), marketing restriction, periodic penalty payment, technical standard

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);

C 116/16

EN

Official Journal of the European Union

9.5.2008

— order the Hellenic Republic to pay to the Commission a
proposed penalty payment of EUR 31 798,80 for each day
of delay in complying with the judgment which was deliv-
ered in Case C-65/05, from the day when judgment is deliv-
ered in the present case until the day when the judgment
delivered in Case C-65/05 has been complied with;

— order the Hellenic Republic to pay to the Commission a
daily lump sum of EUR 9 636, from the day when judgment
was delivered in Case C-65/05 until the date on which judg-
ment is delivered in the present case or, if earlier, the date
on which the judgment in Case C-65/05 is complied with;

— order the Hellenic Republic to pay the costs.

delivered in the present case until the day when the judg-
ment delivered in Case C-65/05 has been complied with;

— a daily lump sum of EUR 9 636, from the day when
judgment was delivered in Case C-65/05 until the date
on which judgment is delivered in the present case or, if
earlier, the date on which the judgment in Case C-65/05
is complied with.

(1) Directive 98/34/EC of the European Parliament and of the Council
of 22 June 1998 laying down a procedure for the provision of infor-
mation in the field of technical standards and regulations (OJ L 204,
21.7.1998, p. 37).

Pleas in law and main arguments

1. On 26 October 2006 the Court of Justice of the European
Communities delivered a judgment in which it declared as
follows:

Reference for a preliminary ruling from the Högsta
Domstolen (Sweden) lodged on 12 March 2008 — SCT
Industri Aktiebolag i likvidation v Alpenblume Aktiebolag

by inserting into Articles 2(1) and 3 of Law No 3037/2002
the prohibition, subject to the criminal and administrative
penalties set out in Articles 4 and 5 of the same law, on the
installation and operation of all electrical, electromechanical
and electronic games, including all computer games, on all
public or private premises apart from casinos, the Hellenic
Republic had failed to fulfil its obligations under Articles 28
EC, 43 EC and 49 EC and Article 8 of Directive 98/34/CE of
the European Parliament and of the Council laying down a
procedure for the provision of information in the field of
technical standards and regulations and of rules on Informa-
tion Society services, as amended by Directive 98/48/EC of
the European Parliament and of
the Council of 20 July
1998.

(Case C-111/08)

(2008/C 116/28)

Language of the case: Swedish

Referring court

Högsta Domstolen

2. After calling upon the Hellenic Republic to inform it of any
regulatory measures to comply with the Court's judgment,
formal notice and a
it a letter of
the Commission sent
reasoned opinion, in accordance with Article 228 EC. The
Hellenic Republic replied to neither.

Parties to the main proceedings

Applicant: SCT Industri Aktiebolag i likvidation

Defendant: Alpenblume Aktiebolag

3. Consequently, the Commission recorded that the Hellenic
Republic had failed to take the necessary measures to comply
with the Court's judgment and decided to bring proceedings
against it before the Court in accordance with Article 228
EC.

4. By its action the Commission, first, asks the Court to declare
that the Hellenic Republic has not complied with the judg-
ment delivered by the Court on 26 October 2006 in Case
its obligations
C-65/05 and has therefore failed to fulfil
under Articles 28 EC, 43 EC and 49 EC and Article 8 of
Directive 98/34/EC and, second, proposes that the Court
order the Hellenic Republic to pay to the Commission:

— a penalty payment of EUR 31 798,80 for each day of
delay in complying with the judgment which was deliv-
ered in Case C-65/05, from the day when judgment is

Question referred

Is the exception in the Brussels I Regulation regarding insol-
vency, compositions and analogous proceedings to be inter-
preted as meaning that it covers a decision given by a court in
one Member State (A) regarding registration of ownership of
shares in a company having its registered office in Member State
A, which ownership is transferred by the liquidator
to a
company in another Member State (B), where the court based
its decision on the fact that Member State A, in the absence of
an agreement between the States regarding mutual recognition
of insolvency proceedings, does not recognise the liquidator's
powers of disposal over property in Member State A?