Case C-329/08: Action brought on 18 July 2008 — Commission of the European Communities v Kingdom of Belgium
Date: 2008-07-18
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, environmental liability, national implementing measure, polluter pays principle, pollution control measures, prevention of pollution

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.