Case C-319/06: Judgment of the Court (First Chamber) of 19 June 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Posting of workers — Freedom to provide services — Directive 96/71/EC — Public policy provisions — Weekly rest days — Obligation to produce documents relating to a posting on demand by the national authorities — Obligation to designate an ad hoc agent residing in Luxembourg to retain all the documents necessary for monitoring purposes)
Date: 2008-06-19
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, labour law, organisation of work, provision of services, work contract, working conditions

C 209/4

EN

Official Journal of the European Union

15.8.2008

Judgment of the Court (Fourth Chamber) of 26 June 2008
(reference for a preliminary ruling from the Bundes-
finanzhof (Germany)) — Finanzamt Hamburg-Am Tierpark
formerly Burda Verlagsbeteiligungen
v Burda GmbH,

GmbH

(Case C-284/06) (1)

(Tax legislation — Freedom of establishment — Directive
90/435/CEE — Corporation tax — Common system of taxa-
tion applicable in the case of parent companies and subsidi-
aries of different Member States — Company with a share
capital — Distribution of revenue and of increases in share
capital — Withholding tax — Tax credit — Treatment of resi-
dent shareholders and non-resident shareholders)

(2008/C 209/05)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Finanzamt Hamburg-Am Tierpark

Defendant: Burda GmbH, formerly Burda Verlagsbeteiligungen
GmbH

Re:

for

a preliminary

Reference
ruling — Bundesfinanzhof
(Germany) — Interpretation of Article 5(1) of Council Directive
90/435/EEC of 23 July 1990 on the common system of taxa-
tion applicable in the case of parent companies and subsidiaries
of different Member States (OJ 1990 L 225, p. 6), now Article 5
in the version as amended by Council Directive 2003/123/EC of
22 December 2003 amending Directive 90/435/EEC on the
common system of taxation applicable in the case of parent
companies and subsidiaries of different Member States (OJ 2004
law
L 7, p. 41) — Concept of withholding tax — National
providing that, where profits are distributed by a subsidiary to
its parent company, income and asset increases of the capital
company are to be taxed, even though they would not be taxed
if
they remained with the subsidiary — Interpretation of
Articles 43 EC, 56 EC and 58 EC — National law providing for
set-off arrangements for the distribution of profits by a capital
company using its own capital, resulting in taxation even where
dividends are distributed to non-resident shareholders which are
unable to set off the corporation tax against their own tax liabi-
lity

Operative part of the judgment

increases of

income and asset

provides for the taxation of
the
subsidiary which would not have been taxed if they had remained
with the subsidiary and had not been distributed to the parent
company does not constitute withholding tax within the meaning
of Article 5(1) of Council Directive 90/435/EEC of 23 July 1990
on the common system of taxation applicable in the case of parent
companies and subsidiaries of different Member States.

2. Article 52 of the Treaty (now, after amendment, Article 43 EC)
must be interpreted as not precluding the application of a national
measure, such as Paragraph 28(4) of the Law on Corporation Tax
1996 (Körperschaftsteuergesetz 1996), in the version applicable to
the facts of the main proceedings, under which the taxation of
profits distributed by a subsidiary resident in a Member State to its
parent company is subject to the same corrective mechanism regard-
less of whether the parent company is resident in the same Member
State or in another Member State even though — unlike a resident
parent company — a non-resident parent company is not granted
a tax credit by the Member State in which the subsidiary is resi-
dent.

(1) OJ C 237, 30.9.2006.

Judgment of the Court (First Chamber) of 19 June 2008 —
Commission of the European Communities v Grand Duchy
of Luxembourg

(Case C-319/06) (1)

(Failure of a Member State to fulfil obligations — Posting of
workers — Freedom to provide services — Directive 96/71/EC
— Public policy provisions — Weekly rest days — Obligation
to produce documents relating to a posting on demand by the
national authorities — Obligation to designate an ad hoc
agent residing in Luxembourg to retain all the documents
necessary for monitoring purposes)

(2008/C 209/06)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Enegren and G. Rozet, acting as Agents)

1. A provision of national

in relation to cases where
law which,
profits are distributed by a subsidiary to its parent company,

Defendant(s): Grand Duchy of Luxembourg (represented by: C.
Schiltz, acting as Agent)

15.8.2008

EN

Official Journal of the European Union

C 209/5

Re:

and of

Failure of a Member State to fulfil obligations — Infringement
of Articles 49 EC and 50 EC and incorrect implementation of
Article 3(1) and (10) of Directive 96/71/EC of the European
Parliament
the Council of 16 December 1996
concerning the posting of workers in the framework of the
provision of services (OJ 1997 L 18, p. 1) — Obligation to have
an ad hoc agent resident in Luxembourg to keep all the docu-
ments necessary for the purposes of controls — Application of
national provisions on working and employment conditions
both going beyond and falling short of the requirements of the
directive

Operative part of the judgment

The Court:

1) Declares that

Judgment of the Court (Third Chamber) of 26 June 2008
(reference for a preliminary ruling from the Verwaltungs-
gericht
Chemnitz
(Germany)) — Arthur Wiedemann (C-329/06) v Land
Baden-Württemberg and Peter Funk (C-343/06) Stadt
Chemnitz

Verwaltungsgericht

Sigmaringen,

(Joint Cases C-329/06 and C-343/06) (1)

(Directive 91/439/EEC — Mutual recognition of driving
licences — Withdrawal of a licence in one Member State for
use of narcotic drugs or alcohol — New licence issued in
another Member State — Refusal to recognise right to drive
in the first Member State — Residence not in accordance with
Directive 91/439/EEC)

(2008/C 209/07)

Language of the case: German

— by declaring the provisions of points (1), (2), (8) and (11) of
Article 1(1) of the Law of 20 December 2002 transposing
Directive 96/71/EC of the European Parliament and of the
Council of 16 December 1996 concerning the posting of
workers in the framework of the provision of services and the
monitoring of the implementation of labour law to be manda-
tory provisions falling under national public policy;

— by failing fully to transpose Article 3(1)(a) of Directive
96/71/EC of the European Parliament and of the Council of
16 December 1996 concerning the posting of workers in the
framework of the provision of services;

— by setting out, in Article 7(1) of that Law of 20 December
2002, conditions relating to access to the basic information
necessary for monitoring purposes by the competent national
authorities with insufficient clarity to ensure legal certainty for
undertakings wishing to post workers to Luxembourg; and

Referring court

Verwaltungsgericht Sigmaringen, Verwaltungsgericht Chemnitz
(Germany)

Parties to the main proceedings

Applicants: Arthur Wiedemann
(C-343/06)

(C-329/06),

Peter

Funk

— by requiring, in Article 8 of that Law, that documents neces-
sary for monitoring purposes be retained in Luxembourg by an
ad hoc agent resident there,

Defendants: Land Baden-Württemberg (C-329/06), Stadt Chem-
nitz (C-343/06)

the Grand Duchy of Luxembourg has failed to fulfil its obligations
under Article 3(1) of Directive 96/71, read in conjunction with
Article 10 thereof, and Articles 49 EC and 50 EC.

Re:

2) Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 224, 16.9.2006.

Preliminary ruling — Verwaltungsgericht Sigmaringen — Inte-
pretation of Articles 1(2), 7(1)(a) and 8(2) and (4), and Annex III,
of Council Directive 91/439/EEC of 29 July 1991 on driving
licences (OJ 1991 L 237, p. 1), as amended by Council Directive
96/47/EC of 23 July 1996 amending Directive 91/439/EEC on
driving licences (OJ 1996 L 235, p. 1) — Refusal to recognise
the validity of a driving licence fraudulently obtained in another
the subject of an
Member State by a holder who was