Case C-194/06: Judgment of the Court (Grand Chamber) of 20 May 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v Orange European Smallcap Fund N.V. (Articles 56 EC to 58 EC — Free movement of capital — Taxation of dividends — Concession granted to a fiscal investment enterprise on account of tax deducted at source by another State from dividends received by that enterprise — Restriction of that concession to the amount that a shareholder resident in the Member State of establishment of that enterprise who has made an investment without such an enterprise acting as intermediary could have had credited to income tax on the basis of a convention for the prevention of double taxation — Restriction of that concession by reference to the shares of non-resident shareholders in the capital of that enterprise)
Date: 2008-05-20
Institutions: Court of Justice
Subjects: direct investment, free movement of capital, interpretation of the law, investment company, shareholder, tax convention, tax on investment income, tax system

C 171/4

EN

Official Journal of the European Union

5.7.2008

Judgment of the Court (Grand Chamber) of 20 May 2008
(reference for a preliminary ruling from the Hoge Raad der
Nederlanden — Netherlands) — Staatssecretaris van
Financiën v Orange European Smallcap Fund N.V.

(Case C-194/06) (1)

(Articles 56 EC to 58 EC — Free movement of capital —
Taxation of dividends — Concession granted to a fiscal invest-
ment enterprise on account of tax deducted at source by
another State from dividends received by that enterprise —
Restriction of that concession to the amount that a share-
holder resident in the Member State of establishment of that
enterprise who has made an investment without such an
enterprise acting as intermediary could have had credited to
income tax on the basis of a convention for the prevention of
double taxation — Restriction of that concession by reference
to the shares of non-resident shareholders in the capital of
that enterprise)

(2008/C 171/05)

Language of the case: Dutch

that Member State on account of tax deducted at source in another
Member State or third country from dividends received by those
enterprises, and reduces that concession where and to the extent to
which the shareholders of those enterprises are natural or legal
persons resident or established in other Member States or in third
countries, since such a reduction adversely affects all the share-
holders of those enterprises without distinction.

In that respect, whether the foreign shareholders of a fiscal invest-
ment enterprise are resident or established in a State with which
the Member State of establishment of that enterprise has concluded
a convention providing for reciprocal crediting of tax deducted at
source from dividends is irrelevant.

3. A restriction is covered by Article 57(1) EC as being a restriction
on the movement of capital involving direct investment in so far as
it relates to investments of any kind undertaken by natural or legal
persons and which serve to establish or maintain lasting and direct
links between the persons providing the capital and the undertak-
ings to which that capital is made available in order to carry out
an economic activity.

(1) OJ C 178, 29.7.2006.

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: Orange European Smallcap Fund N.V.

Re:

for

Reference
a preliminary ruling — Hoge Raad der
Nederlanden — Interpretation of Articles 56 EC, 57(1) EC
and 58(1) EC — National legislation granting a tax credit to an
investment undertaking in respect of tax on dividends deducted
at source by another Member State — Limitation in the case of
shareholders not resident in the Netherlands or not subject to
Netherlands corporation tax

Operative part of the judgment

1. Articles 56 EC and 58 EC do not preclude legislation of a
Member State, such as the legislation at issue in the main proceed-
ings, which grants a concession to fiscal
investment enterprises
established in that Member State on account of tax deducted at
source in another Member State from dividends received by those
enterprises, and restricts that concession to the amount which a
natural person resident in the first Member State could have had
credited, on account of similar deductions, on the basis of a double
taxation convention concluded with that other Member State.

2. Articles 56 EC and 58 EC preclude legislation of a Member State,
such as the legislation at issue in the main proceedings, which
grants a concession to fiscal investment enterprises established in

Judgment of the Court (Fourth Chamber) of 22 May 2008
— Evonik Degussa GmbH,
formerly Degussa GmbH v
Commission of the European Communities and Council of
the European Union

(Case C-266/06 P) (1)

(Appeal — Competition — Cartel — Market in methionine
— Fine — Regulation No 17/62 — Article 15(2) — Nulla
poena sine lege — Distortion of the facts — Principle of
proportionality — Principle of equal treatment)

(2008/C 171/06)

Language of the case: German

Parties

Appellant: Evonik Degussa GmbH,
formerly Degussa GmbH
(represented by: R. Bechtold, M. Karl and C. Steinle, Rechtsan-
wälte)

Other parties to the proceedings: Commission of the European
Communities (represented by: A. Bouquet, W. Mölls, Agents,
and H.-J. Freund, Rechtsanwalt) and Council of the European
Union (represented by: S. Marquardt, G. Curmi and M. Simm,
Agents)