Case C-171/08: Action brought on 25 April 1998 — Commission of the European Communities v Portuguese Republic
Date: 2008-04-25
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, company law, principle of proportionality, share, telecommunications industry

C 171/24

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Official Journal of the European Union

5.7.2008

a preliminary ruling from the Corte
Reference for
Costituzionale
lodged on 21 April 2008 —
(Italy)
Presidente del Consiglio dei Ministri v Regione Autonoma
della Sardegna

(Case C-169/08)

(2008/C 171/35)

Language of the case: Italian

Referring court

Corte Costituzionale

Parties to the main proceedings

Applicant: Presidente del Consiglio dei Ministri

Defendant: Regione Autonoma della Sardegna

the regional tax on recreational craft making stopovers only
on undertakings, operating recreational craft, which have tax
domicile outside the territory of the Region of Sardinia and
whose commercial operations involve making such craft
available to third parties constitute, within the meaning of
Article 87 of the Treaty, State aid to undertakings carrying
on the same activities which have tax domicile in the Region
of Sardinia?

Action brought on 25 April 1998 — Commission of the
European Communities v Portuguese Republic

(Case C-171/08)

(2008/C 171/36)

Language of the case: Portuguese

Questions referred

Parties

1. Is Article 49 of the Treaty to be interpreted as precluding the
application of a rule, such as that laid down in Article 4 of
Law No 4 of the Region of Sardinia of 11 May 2006 (Miscel-
laneous provisions on revenue, reclassification of costs, social
policy and development), as amended by Article 3(3) of Law
No 2 of the Region of Sardinia of 29 May 2007 (Provisions
for the preparation of the annual and long-term budget of
the Region — 2007 Finance Law), under which the regional
tax on aircraft making stopovers for tourist purposes is
levied only on undertakings, operating aircraft which they
themselves use for the transport of persons in the course of
‘general business aviation’ activities, which have tax domicile
outside the territory of the Region of Sardinia?

2. Does Article 4 of Law No 4 of 2006 of the Region of
Sardinia, as amended by Article 3(3) of Law No 2 of 2007
of the Region of Sardinia, by providing for the imposition of
the regional tax on aircraft making stopovers for tourist
purposes only on undertakings, operating aircraft which they
themselves use for the transport of persons in the course of
‘general business aviation’ activities, which have tax domicile
outside the territory of the Region of Sardinia, constitute,
within the meaning of Article 87 of the Treaty, State aid to
undertakings carrying on the same activities which have tax
domicile in the Region of Sardinia?

3. Is Article 49 of the Treaty to be interpreted as precluding the
application of a rule, such as that laid down in Article 4 of
Law No 4 of 2006 of the Region of Sardinia, as amended by
Article 3(3) of Law No 2 of 2007 of the Region of Sardinia,
under which the regional tax on recreational craft making
stopovers for tourist purposes is levied only on undertakings,
operating recreational craft, which have tax domicile outside
the territory of the Region of Sardinia and whose commer-
cial operations involve making such craft available to third
parties?

4. Does Article 4 of Law No 4 of 2006 of the Region of
Sardinia, as amended by Article 3(3) of Law No 2 of 2007
of the Region of Sardinia, by providing for the imposition of

Applicant: Commission of the European Communities (repre-
sented by E. Montaguti, P. Guerra e Andrade and M. Telles
Romão, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration that, by maintaining special rights for the
State and other public bodies in Portugal Telecom S.A.,
attributed in connection with the State's golden shares
(preferential shares) in Portugal Telecom S.A, the Portuguese
Republic has failed to fulfil its obligations under Articles 56
and 43 EC;

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

Pleas in law and main arguments

The Portuguese State holds 500 golden shares in Portugal
Telecom S.A. (PT). Those shares give the State the right of veto
in respect of resolutions for the election of the officers of the
General Assembly, the election of the Chairman of the Audit
Committee and of the Official Auditor, the application of profit
and loss accounts, alteration of the memorandum and articles
of association,
increase in capital, restriction and removal of
preferential rights, issue of bonds and other real property, the
fixing of the general aims and fundamental principles of the
company's policies, defining of the general policy principles for
participation in other companies, authorisation of change of the
company seat and authorisation of the purchase of shares repre-
senting more than 10 % of share capital by shareholders
carrying on, directly or indirectly, an activity in competition
with that of the companies controlled by PT, and the right of
veto in respect of a third of the total number of directors,
including, necessarily, the Chairman of the Board of Directors.

5.7.2008

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Official Journal of the European Union

C 171/25

The Commission is of the view that such rights of veto consti-
tute restrictions of movements of capital and of freedom of
establishment. Such measures amount
to
direct investment in PT, an impediment to portfolio investment
and an impediment to the exercise of freedom of establishment.

to an impediment

Those special rights of the State constitute State measures, for
the golden shares are not a consequence of a normal application
of company law.

The golden shares have nothing to do with lawful objectives of
public interest or, especially, with those pleaded by the
Portuguese State, viz., public order and safety, maintaining of
cable and copper networks and maintaining of wholesale and
retail activity within PT, public service concessions, the pattern
for regulating the market in telecommunications and any distur-
bance of the capital market.

In any case, the Portuguese State has not observed the principle
of proportionality, for the measures at issue are not apt to
ensure that the objectives pursued are attained and they go
beyond what is necessary in order to attain those objectives.

State in question — based on Article 5(7) and Article 6(3) of
the Sixth Directive — is required to pay VAT on its internal
supplies in connection with the construction of buildings on
its own account with a view to subsequent sale, to have only
a partial right
to deduct VAT for general costs for the
purposes of the building business, given that the subsequent
sale of the real estate is, under the Member State's VAT legis-
lation, exempt from VAT on the basis of Article 28(3)(b) of
the Sixth VAT Directive, read in conjunction with point 16
of Annex F?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1).

Reference for a preliminary ruling from the Administrative
Court of Appeal, Thessaloniki (Greece) lodged on 28 April
2008 — Maria Kastrinaki v A.KH.E.P.A. University
Hospital, Thessaloniki

Reference for a preliminary ruling from the Østre Landsret
(Denmark) lodged on 28 April 2008 — NCC Construction
Danmark A/S v Skatteministeriet

(Case C-174/08)

(2008/C 171/37)

Language of the case: Danish

Referring court

(Case C-180/08)

(2008/C 171/38)

Language of the case: Greek

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: NCC Construction Danmark A/S

Defendant: Skatteministeriet

Questions referred

1. Is the term ‘incidental real estate transactions’

in the second
sentence of Article 19(2) of the Sixth VAT Directive (1) to be
interpreted as covering the activities of a building business
which is subject to VAT in connection with the subsequent
sale of real estate built by the building business on its own
account as an activity fully subject to VAT with a view to
resale?

2. For the purposes of the answer to question 1, is the extent
to which the sales activities, viewed separately, entail the use
of goods and services on which VAT is payable of relevance?

3. Is it consistent with the VAT-law principle of neutrality for a
building business which, under the legislation of the Member

Administrative Court of Appeal, Thessaloniki

Parties to the main proceedings

Applicant: Maria Kastrinaki

Defendant: A.KH.E.P.A. University Hospital, Thessaloniki

Questions referred

1. Where nationals of a Member State, relying upon evidence of
a qualification that they believe comes within the scope of
Directive 89/48/ΕEC, have been recruited by a legal person
governed by public law and exercise a regulated profession
in the host Member State under a contract of employment of
unlimited duration governed by private
law, having
progressed in terms of their career and salary in keeping
with the qualification in question, is it subsequently open to
the competent authorities, for the purpose of Articles 1, 2, 3
and 4 of the said directive, interpreted in the light of Arti-
cles 149 and 150 of the Treaty establishing the European
Community, to prevent such persons from exercising their
professional rights because they are unable to recognise the
academic equivalence of the qualification relied on for the
purpose of classification in the job category and salary grade