Case C-307/08: Action brought on 9 July 2008 — Commission of the European Communities v Kingdom of Belgium
Date: 2008-07-09
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, capital market, double taxation, free movement of capital

25.10.2008

EN

Official Journal of the European Union

C 272/7

the opening of

insolvency proceedings against

2. Must Article 1(2)(b) of the Brussels I Regulation, in conjunc-
tion with Article 7(1) of the Insolvency Regulation, be inter-
preted as meaning that it follows from the fact that an asset
to which a reservation of title applies is situated, at the time
of
the
purchaser,
in the Member State in which those insolvency
proceedings are opened, that a claim of the seller based on
that reservation of title, such as that of German Graphics,
must be regarded as a claim which relates to bankruptcy or
the winding-up of an insolvent
company, within the
meaning of Article 1(2)(b) of the Brussels I Regulation, and
which therefore falls outside the material scope of that regu-
lation?

3. Is it relevant in the context of Question 2 that, pursuant to
Article 4(2)(b) of the Insolvency Regulation, the law of the
Member State in which the insolvency proceedings are
opened is to determine the assets which form part of the
estate?

(1) Council Regulation (EC) No 1346/2000 of 29 May 2000 on insol-

vency proceedings (OJ 2000 L 160, p. 1).

(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters (OJ 2001 L 12, p. 1).

2004 on the coordination of procedures for the award of
public works contracts, public supply contracts and public
service contracts (1);

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission alleges that the defendant permits
the award of contracts on the basis of mutual agreement — or
with limited competition — in situations not provided for by
Directive 2004/18/EC. By drawing a distinction between marchés
de definition and public works, supply or service contracts and
by allowing,
in certain circumstances, the award of the latter
contracts to one of the holders of the initial marchés de defini-
tion without again opening them to competition or, at the very
least, by opening them to competition limited only to those
holders, the French legislation disregards the fundamental princi-
ples of
to Directive
2004/18/EC. In the Commission's view, it is impossible by defi-
nition for the subject-matter and criteria for the award of a
public procurement contract to be known precisely before the
project itself has been defined. The marché de definition and the
public works, supply or service contract are two entirely distinct
types of public procurement contract, each having its own
subject-matter and criteria for award and, on those grounds,
they must both comply with the stipulations of Directive
2004/18/EC.

equality and transparency inherent

Action brought on 4 July 2008 — Commission of the
European Communities v French Republic

(1) OJ L 134, p. 114.

(Case C-299/08)

(2008/C 272/08)

Language of the case: French

Parties

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

Defendant: French Republic

Form of order sought

— Declare that, by adopting and keeping in force Articles 73
and 74-IV of the Code des marchés publics (Public Procure-
ment Code) adopted by Decree No 2006-975 of 1 August
2006, inasmuch as those provisions lay down a procedure
for the award of marchés de definition (public contracts for
designing the parameters, including the purpose, of a public
works, supply or service contract) under which it is possible
for the awarding authority to award a public works, supply
or service contract
the initial
marchés de definition without opening it afresh to competition
or, at most, by opening it to competition limited to those
holders, the French Republic has failed to fulfil its obliga-
tions under Articles 2, 28 and 31 of Directive 2004/18/EC
of the European Parliament and of the Council of 31 March

the holders of

to one of

Action brought on 9 July 2008 — Commission of the
European Communities v Kingdom of Belgium

(Case C-307/08)

(2008/C 272/09)

Language of the case: French

Parties

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

Defendant: Kingdom of Belgium

Form of order sought

— Declare that, since it does not prevent double taxation of
dividends paid by undertakings domiciled in another
Member State or EEA/EFTA State to natural persons, the
Kingdom of Belgium has failed to fulfil its obligations under
Article 56 EC and Article 40 of the European Economic
Area Agreement;

— order the Kingdom of Belgium to pay the costs.

C 272/8

EN

Official Journal of the European Union

25.10.2008

Pleas in law and main arguments

inasmuch as it

taxes dividends payment

By its action, the Commission submits that Belgian tax legisla-
tion creates an unjustified restriction on the free movement of
capital
to natural
persons by companies established in another Member State or
in a State of the European Economic Area (‘incoming’ dividends)
in the same way as dividends paid by companies established in
Belgium (‘internal’ dividends), without taking into account taxa-
tion at source paid in the State from which the dividends origi-
nate. Such legislation penalises cross-border capital transactions
since it dissuades individual taxpayers from investing in shares
in foreign companies and at the same time it constitutes an
obstacle to the accumulation of capital in Belgium for compa-
nies having their registered office in other Member States.

2. If the answer to Question 1 is in the negative, what criteria
— whether or not derived (in part) from the judgment of
the Court of Justice in Case C-9/93 IHT and Danzinger v
Ideal-Standard and Wabco Standard [1994] ECR I-2789,
… — must be applied in the first case referred to in that
question in order to determine whether the trade mark
proprietor has given (implicit) consent within the meaning of
Directive 89/104/EEC?

(1) OJ 1989 L 40, p. 1.

Action brought on 18 July 2008 — Commission of the
European Communities v Kingdom of Belgium

Reference for a preliminary ruling from the Hoge Raad
der Nederlanden (Netherlands) lodged on 16 July 2008 —
2. Metro
1. Makro Zelfbedieningsgroothandel CV,
Cash & Carry BV and 3. Remo Zaandam BV v Diesel SpA

(Case C-329/08)

(2008/C 272/11)

Language of the case: French

(Case C-324/08)

(2008/C 272/10)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellants: 1. Makro Zelfbedieningsgroothandel CV, 2. Metro
Cash & Carry BV and 3. Remo Zaandam BV

Parties

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

Defendant: Kingdom of Belgium

Form of order sought

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/35/CE of the European Parliament and of the Council
of 21 April 2004 on environmental liability with regard to
the prevention and remedying of environmental damage (1),
the Kingdom of Belgium has failed to fulfil its obligations
under Article 19 of that directive;

Respondent: Diesel SpA

— order the Kingdom of Belgium to pay the costs.

Questions referred

Pleas in law and main arguments

1. In the case where goods bearing a trade mark proprietor's
mark have previously been placed on the market within the
EEA, but not by him or with his express consent, must the
same criteria be applied in determining whether this has
occurred with the (implicit) consent of
the trade mark
proprietor, within the meaning of Article 7(1) of First
Council Directive 89/104/EEC (1) of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks, as are applied in the case where such goods have
previously been placed on the market outside the EEA by the
trade mark proprietor or with his consent?

for

period

prescribed

The
of Directive
2004/35/EC expired on 30 April 2007. At the date on which
the present action was brought,
the defendant had not yet
adopted all the measures necessary for transposition as regards
the Région de Bruxelles-Capitale.

transposition

(1) OJ L 143, p. 56.