Case C-462/05: Judgment of the Court (Fourth Chamber) of 12 June 2008 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil its obligations — Admissibility — Res judicata — Sixth VAT Directive — Article 4(5), first subparagraph, Article 12(3)(a) and Article 28(2)(e))
Date: 2008-06-12
Institutions: Court of Justice
Subjects: European Commission, Portugal, VAT rate, action for failure to fulfil an obligation, tax harmonisation, toll

15.8.2008

EN

Official Journal of the European Union

C 209/3

Judgment of the Court (Fourth Chamber) of 12 June 2008
v
— Commission

European Communities

the

of
Portuguese Republic

Judgment of the Court (First Chamber) of 19 June 2008 —
the European Communities v Federal
Commission of
Republic of Germany

(Case C-462/05) (1)

(Case C-39/06) (1)

(Failure of a Member State to fulfil its obligations — Admis-
sibility — Res judicata — Sixth VAT Directive — Article 4(5),
first subparagraph, Article 12(3)(a) and Article 28(2)(e))

(2008/C 209/03)

Language of the case: Portuguese

(Failure to fulfil obligations — State aid — Subsidies for
investment and employment — Obligation to recover —
legitimate
Non-compliance — Principle of protection of

expectations)

(2008/C 209/04)

Language of the case: German

Parties

Parties

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

Applicant: Commission of the European Communities (repre-
sented by: K. Gross and T. Scharf, acting as Agents)

Defendant: Portuguese Republic (represented by: L. Fernandes, Â.
Seiça Neves and R. Laires, acting as Agents)

Defendant: Federal Republic of Germany (represented by: M.
Lumma and C. Schulze-Bahr, Agents)

Re:

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 12 and 28 of Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation 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)
— Maintaining in force a reduced rate of 5 % on tolls on road
crossings of the river Tagus in Lisbon

Failure of a Member State to fulfil obligations — Infringement
of Article 249 EC and Articles 1, 2 and 3 of Commission Deci-
sion 2003/643/EC of 13 May 2003 on the State aid imple-
mented by Germany for Kahla Porzellan GmbH and Kahla/Thür-
ingen Porzellan GmbH (notified under document number
C(2003) 1520; Aid No C-62/00, ex NN 142/99)
(OJ 2003
L 227, p. 12) — Failure to take, within the prescribed time-
limit, the measures necessary to recover aid which was declared
incompatible with the common market

Operative part of the judgment

The Court:

Operative part of the judgment

The Court:

1. Declares that, by maintaining in force a reduced rate of value added
tax of 5 % applicable to road tolls for crossing the Tagus at
Lisbon, the Portuguese Republic has failed to fulfil its obligations
under Articles 12 and 28 of
the Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws
of
taxes — Common
system of value added tax: uniform basis of assessment, as
amended by Council Directive 2001/4/EC of 19 January 2001;

the Member States relating to turnover

1. Declares that,

in failing to take all

the measures necessary to
recover certain aid declared incompatible with the common market
by Article 1(2)(d) and (g) of
the Commission Decision of
30 October 2002, as it appears in Decision 2003/643/EC of
13 May 2003 on the State aid implemented by Germany for
Kahla Porzellan GmbH and Kahla/Thüringen Porzellan GmbH,
the Federal Republic of Germany has failed to fulfil its obligations
under Articles 1 to 3 of that decision;

2. Orders the Portuguese Republic to pay the costs.

2. Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 60, 11.3.2006.

(1) OJ C 60, 11.3.2006.