Case C-499/08: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 19 November 2008 — Ingeniørforeningen i Danmark for Ole Andersen v Region Syddanmark
Date: 2008-11-19
Institutions: Court of Justice
Subjects: EU Member State, age discrimination, anti-discriminatory measure, dismissal, interpretation of the law, pension scheme, severance pay

24.1.2009

EN

Official Journal of the European Union

C 19/17

Pleas in law and main arguments

— order the French Republic to pay the costs.

Under the Spanish legislation, companies which have a substan-
tial holding in the capital of a branch may deduct from their
taxable income 100 % of the gross dividend received from that
holding. In order to enjoy this facility, parent companies resi-
dent in Spain must have had a holding of at least 5 % of the
capital of the resident branch of the company for an uninter-
rupted period of at least one year. Dividends which qualify for
the application of that facility are exempt from deduction at
source.

In order to enjoy that exemption, parent companies not resident
in Spain were required to have a holding of 20 %, which was
reduced to 15 % from 1 January 2007 and will be reduced to
10 % from 1 January 2009. Thus, unlike parent companies resi-
dent in Spain, parent companies from other Member States of
the EC and Member States party to the Agreement on the
European Economic Area which have a holding in the capital of
at least 5 % but lower than the limits mentioned have to pay
tax in respect of the dividends paid by the branch.

The Commission takes the view that by imposing a requirement
of a larger holding in the capital for parent companies which
are not resident than is imposed on resident companies in order
to enjoy the exemption from tax for dividends distributed by
the branches in Spain the difference in treatment under the
Spanish legislation constitutes discrimination contrary
to
Article 56 EC and Article 40 of
the EEA Agreement. The
Commission can see no justification for this additional fiscal
burden which falls on parent companies from other Member
States and the Member States of the EEA.

Pleas in law and main arguments

The Commission disputes the application, by the defendant, of a
reduced rate of VAT for services provided in the context of legal
aid by lawyers, lawyers at the Council of State and at the Court
of Cassation as well as avoués, as such services are not included
in any of
the categories listed in Annex III of Directive
2006/112/EC.

In order to respond to the defendant's three main arguments,
the Commission submits first that the guarantee of access to
justice cannot be an appropriate reason for derogating from the
normal rate of VAT on the services of lawyers to the extent that
that guarantee is connected more to the range of aid granted by
the State than to the rate of VAT, which is determined in a
uniform manner at Community level.

Secondly, according to the applicant, the social nature of the
activities at issue is not sufficient for them to be included in the
other categories of services listed in Annex III of the directive,
for which a reduction in the rate of VAT is allowed as compared
to the normal applicable rate. According to the Court's settled
case-law, a narrow interpretation of the nature of those services
would be necessary so as to maintain the restrictive nature of
that annex.

Finally, the Commission states that the aim both of Articles 96
and 98(2) of the VAT directive and of Annex III thereof is not
to avoid distortions of competition between economic operators
providing the same goods or services, but more simply to
encourage a progressive harmonisation of the legislation of the
Member States, by harmonising the rates of VAT applied and
limiting the transactions which can be subject to reduced rates.

Action brought on 14 November 2008 — Commission of
the European Communities v French Republic

(1) Council Directive 2006/112/EC of 28 November 2006 on the

common system of value added tax (OJ 2006 L 347, p. 1).

(Case C-492/08)

(2009/C 19/30)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Afonso, acting as Agent)

Defendant: French Republic

Form of order sought

Reference for a preliminary ruling from the Vestre
lodged on 19 November 2008 —
Landsret
Ingeniørforeningen i Danmark for Ole Andersen v Region
Syddanmark

(Denmark)

(Case C-499/08)

(2009/C 19/31)

Language of the case: Danish

— Declare that by applying a reduced rate of value added tax
(VAT) to services provided by lawyers, lawyers at the Council
of State and at the Court of Cassation and avoués, for which
they are paid in part or in whole by the State through legal
aid, France has failed to fulfil its obligations under Articles 96
and 98(2) of the VAT directive (1);

Referring court

Vestre Landsret

C 19/18

EN

Official Journal of the European Union

24.1.2009

Parties to the main proceedings

Applicant: Ingeniørforeningen i Danmark for Ole Andersen

Rules of Procedure of the Court of Justice or, alternatively,
that the decision as to costs should be reserved to the judg-
ment or order closing the proceedings.

Defendant: Region Syddanmark

Question referred

the prohibition of direct or

Is
indirect discrimination on
grounds of age contained in Articles 2 and 6 of Council Direc-
tive 2000/78/EC (1) to be interpreted as precluding a Member
State from maintaining a legal situation whereby an employer,
upon dismissal of a salaried employee who has been continu-
ously employed in the same undertaking for 12, 15 or 18 years,
must, upon termination of the salaried employee's employment,
pay an amount equivalent to one, two or three months' salary
respectively, but as meaning that this allowance is not to be
paid where the salaried employee, upon termination of employ-
ment, is entitled to receive an old-age pension from a pension
scheme to which the employer has contributed?

(1) OJ L 303, 2.12.2000, p. 16.

Appeal brought on 20 November 2008 by Município de
Gondomar against the order made by the Court of First
Instance (Fourth Chamber) on 10 September 2008 in Case
T-324/06 Município de Gondomar v Commission

(Case C-501/08 P)

(2009/C 19/32)

Language of the case: Portuguese

Parties

Appellant: Município de Gondomar (represented by J.L. da Cruz
Vilaça and L. Pinto Monteiro, advogados)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

Pleas in law and main arguments

1. ERROR OF LAW IN THE ASSESSMENT OF THE CONDITION OF

DIRECT CONCERN AND FAILURE TO STATE GROUNDS

The Município de Gondamar considers that the Portuguese legal
order includes special features that ought to lead to an interpre-
tation other than that made by the Court of First Instance in its
order in Case T-324/06 declaring the action inadmissible, which
is marred by errors of law.

It is clear from the Portuguese legislation,
in particular from
Articles 18 and 20 of the Regulation giving effect to the Cohe-
sion Fund in Portugal, approved by the single article of Decree-
Law No 191/2000 of 16 August 2000, that the Portuguese
Republic enjoys no latitude at all in deciding whether or not to
maintain the assistance allocated by the Cohesion Fund to the
Município de Gondamar as the body responsible for the execu-
tion of the project,
leading thus to the conclusion that the
Commission's decision to cancel the aid granted by the Cohe-
sion Fund is of an automatic nature,
the legislation
concerned does not permit the bodies responsible for perfor-
mance to be relieved of the duty to reimburse the sums over-
paid.

for

The Court of First Instance,
in its order in Case T-324/06
declaring the action inadmissible, refrained from making any
reference to that question and so, the latter being an essential
point for the purpose of determining whether the action is
Instance erred in law, with
admissible,
immediate effects on the exercise of
the procedural rights
conferred by Article 230 EC.

the Court of First

As a result of that failure to rule on the matter, the order is
vitiated because the statement of grounds is lacking or defective.
In accordance with Community case-law and legal writings,
there is a general duty to state the reasons for the decisions
made by administrative and judicial bodies, so as to make it
easier for the Court of Justice to perform its task of judicial
review.

Instance's

failure to give a decision
The Court of First
concerning the special features of the Portuguese legal order
constitutes a failure to state the grounds capable of seriously
affecting the appellant's interests.

— A decision setting aside the order of

the Court of First
Instance and declaring admissible the action for annulment
of Commission Decision C(2006) 3782 of 16 August 2006
on the cancellation of the financial assistance granted by the
Cohesion Fund;

— alternatively, a decision setting aside the order of the Court
of First Instance and ordering the case to be referred back to
the Court of First Instance for it to give another decision;

— an order that the European Commission should pay all the
costs including the appellant's, pursuant to Article 69 of the

2. BREACH OF
PROTECTION

THE

PRINCIPLE OF

EFFECTIVE

JUDICIAL

The Município de Gondamar further considers that it runs the
risk of being denied its right to effective judicial protection, for
want of means of obtaining redress at the domestic level by
which it might challenge the demand for reimbursement of the
financial assistance granted by the Cohesion Fund, given that
the measure notifying it of the Commission's decision to cancel
the financial assistance granted by the Cohesion Fund is not a
measure actionable under domestic law.