Case C-266/06 P: 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 (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)
Date: 2008-05-22
Institutions: Court of Justice
Subjects: action for annulment (EU), chemical industry, control of restrictive practices, fine, infringement of EU law, organic acid

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)

5.7.2008

EN

Official Journal of the European Union

C 171/5

Re:

Appeal against the judgment of
the Court of First Instance
(Third Chamber) in Case T-279/02 Degussa AG v Commission, in
which the Court dismissed in part the action seeking annulment
of Commission Decision 2003/674/EC of 2 July 2002 relating
to a proceeding pursuant to Article 81 of the EC Treaty and
Article 53 of the EEA Agreement (OJ 2003 L 255, p. 1) —
Cartel concerning the market in methionine — Requirements of
the nulla poena sine lege principle in relation to the system of
fines laid down by Article 15(2) of Regulation No 17/62.

— Interpretation of Article 10 of Council Regulation (EEC)
No 574/72 of 21 March 1972 for implementing Regulation
(EEC) No 1408/71 on the application of social security schemes
to employed persons, to self-employed persons and to members
of their families moving within the Community (OJ, English
Special Edition, Series I, Chapter 1972 (I), p. 159) — Interpreta-
tion of Article 39 EC — Interpretation of general principles —
Child benefit for dependent children — Suspension of benefits
paid in the State of residence — Right to benefits of the same
type in the State of employment.

Operative part of the judgment

1. The appeal is dismissed.

2. Evonik Degussa GmbH is ordered to bear the costs.

3. The Council of the European Union is ordered to pay its own costs.

(1) OJ C 190 of 12.8.2006.

Judgment of the Court (Grand Chamber) of 20 May 2008
(reference for a preliminary ruling from the Finanzgericht
Köln (Germany)) — Brigitte Bosmann v Bundesagentur für
Arbeit — Familienkasse Aachen

(Case C-352/06) (1)

(Social security — Child benefit — Suspension of entitlement
to benefits — Article 13(2)(a)
of Regulation (EEC)
No 1408/71 — Article 10 of Regulation (EEC) No 574/72 —
Legislation applicable — Granting of benefits in the Member
State of residence which is not the competent Member State)

(2008/C 171/07)

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: Brigitte Bosmann

Defendant: Bundesagentur für Arbeit — Familienkasse Aachen

Re:

Reference for a Preliminary Ruling — Finanzgericht Köln —
Interpretation of Article 13(2)(a) of Council Regulation (EEC)
No 1408/71 of 14 June 1971 on the application of social
security schemes to employed persons, to self-employed persons
and to members of their families moving within the Community
(OJ, English Special Edition Series I, Chapter 1971 (II), p. 416)

Operative part of the judgment

families moving within the Community,

1. Article 13(2)(a) of Council Regulation (EEC) No 1408/71 of
14 June 1971 on the application of social security schemes to
to self-employed persons and to members of
employed persons,
their
in the version
amended and updated by Council Regulation (EC) No 118/97 of
2 December 1996, as amended by Regulation (EC) No 647/2005
of the European Parliament and of the Council of 13 April 2005,
does not preclude a migrant worker, who is subject to the social
security scheme of the Member State of employment, from receiving,
pursuant to the national legislation of the Member State of resi-
dence, child benefit in the latter State.

2. It is for the referring court to determine whether the fact that a
worker, in the situation of the applicant in the main proceedings,
returns at the end of each working day to the family residence in
the Member State concerned is relevant for the purposes of deciding
whether such a worker satisfies the requirements for the grant of
the child benefit in question in that State pursuant to its legisla-
tion.

(1) OJ C 281, 18.11.2006.

Judgment of the Court (Third Chamber) of 22 May 2008
(reference for a preliminary ruling from the College van
Beroep voor het bedrijfsleven) — Feinchemie Schwebda
GmbH, Bayer CropScience AG v College voor de toelating
van bestrijdingsmiddelen

(Case C-361/06) (1)

(Plant protection products — Authorisation to place on the
market — Ethofumesate — Directives 91/414/EEC and
2002/37/EC — Regulation (EEC) No 3600/92 — Application
for reopening of the oral procedure)

(2008/C 171/08)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven