Case C-295/07 P: Judgment of the Court (First Chamber) of 11 December 2008 — Commission of the European Communities v Département du Loiret, Scott SA (Appeal — State aid — Preferential price of a plot of land — Commission decision — Recovery of aid incompatible with the common market — Present-day value of the aid — Compound interest rate — No statement of reasons — Complete annulment — Lawfulness)
Date: 2008-12-11
Institutions: Court of Justice
Subjects: European Community, France, State aid, appeal, common market, preferential price

C 32/4

EN

Official Journal of the European Union

7.2.2009

Parties to the main proceedings

Re:

Applicant: A.T.

Defendant: Finanzamt Stuttgart-Körperschaften

Intervening party: Bundesministerium der Finanzen

Re:

transfers of assets and exchanges of

Reference for a preliminary ruling — Bundesfinanzhof — Interpreta-
tion of Article 8(1) and (2) of Council Directive 90/434/EEC of
taxation applicable to
23 July 1990 on the common system of
shares
mergers, divisions,
concerning companies of different Member States (OJ 1990 L 225,
p. 1) and of Articles 43 EC and 56 EC — Shareholder receiving secu-
rities representing the capital of the acquiring company in exchange for
securities of the acquired company — Taxation of the shareholder of
the acquired company — Tax legislation of a Member State making
the shareholder's attribution of the book value (Buchwertansatz) to the
securities received in exchange conditional upon the acquiring compa-
ny's own attribution of the book value to the securities exchanged
(doppelte Buchwertverknüpfung)

Operative part of the judgment

Article 8(1) and (2) of Council Directive 90/434/EEC of 23 July
1990 on the common system of taxation applicable to mergers, divi-
sions, transfers of assets and exchanges of shares concerning companies
of different Member States precludes legislation of a Member State
under which, in consequence of an exchange of shares, the shareholders
of the acquired company are taxed on the capital gains arising from
the transfer and the capital gain is deemed to correspond to the differ-
ence between the initial cost of acquiring the shares transferred and
their market value, unless the acquiring company carries over the
historical book value of the shares transferred in its own tax balance
sheet.

(1) OJ C 247, 20.10.2007.

Failure of a Member State to fulfil obligations — Infringement
of Articles 4(1) and (2) of Council Directive 79/409/EEC of
2 April 1979 on the conservation of wild birds (OJ 1979 L 103,
p. 1), in conjunction with Article 4(4) of Directive 92/43/EEC of
21 May 1992 on the conservation of natural habitats and of
wild fauna and flora (OJ 1992 L 206, p. 7) — Lack of protec-
tion for Special Protection Areas (SPAs) — Existence of activities
which may damage the integrity of SPAs and have negative
consequences for the objectives of conservation of SPAs and of
the species for which the areas have been defined

Operative part of the judgment

The Court:

1. Declares that, by failing to take all the measures necessary to estab-
lish and apply a coherent, specific and integrated legal regime
capable of ensuring viable management and effective protection of
in the light of the
areas designated as Special Protection Areas,
conservation objectives of Council Directive 79/409/EEC of 2 April
1979 on the conservation of wild birds, the Hellenic Republic has
failed to fulfil
in
conjunction with the first sentence of Article 4(4) of that directive,
as amended by Article 6(2) to (4) of Council Directive 92/43/EEC
of 21 May 1992 on the conservation of natural habitats and of
wild fauna and flora;

its obligations under Article 4(1) and (2),

2. Dismisses the remainder of the action;

3. Orders the Hellenic Republic to pay the costs.

(1) OJ C 182, 4.8.2007.

Judgment of the Court (Second Chamber) of 11 December
the European Communities v
2008 — Commission of

Judgment of the Court (First Chamber) of 11 December
the European Communities v
2008 — Commission of

Département du Loiret, Scott SA

Hellenic Republic

(Case C-293/07) (1)

(Failure of a Member State to fulfil obligations — Directives
79/409/EEC and 92/43/EC — Conservation of wild birds —
of
Special

protection areas — Insufficient measures

protection)

(2009/C 32/06)

Language of the case: Greek

(Case C-295/07 P) (1)

(Appeal — State aid — Preferential price of a plot of land —
Commission decision — Recovery of aid incompatible with the
common market — Present-day value of the aid — Compound
interest rate — No statement of reasons — Complete annul-
ment — Lawfulness)

(2009/C 32/07)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Konstantinidis, D. Recchia and M. Patakia, acting
as Agents)

Parties

Defendant: Hellenic Republic (represented by: E. Skandalou,
Agent)

Appellant: Commission of the European Communities (repre-
sented by: J. Flett, acting as Agent)

7.2.2009

EN

Official Journal of the European Union

C 32/5

Other parties to the proceedings: Département du Loiret, Scott SA
(represented by: J. Lever QC, J. Gardner and G. Peretz, Barristers,
instructed by R. Griffith and M. Papadakis, Solicitors)

Re:

Appeal against the judgment of 29 March 2007 of the Court of
First Instance (First Chamber) in Case T-369/00 Département du
Loiret v Commission, by which the Court annulled Commission
Decision 2002/14/EC of 12 July 2000 on the State aid granted
by France to Scott Paper SA/Kimberly-Clark (OJ 2002 L 12,
p. 1) in so far as it concerns the aid granted in the form of the
preferential price for a property referred to in Article 1 thereof
— Method for calculating interest due on sums unlawfully
received: simple or compound interest rates? — Reasons for the
choice of that method and reversal of the burden of proof —
Point in time at which the existence of an unlawful advantage
falls to be determined

Operative part of the judgment

The Court:

1. Sets aside the judgment of

the
European Communities of 29 March 2007 in Case T-369/00
Département du Loiret v Commission [2007] ECR II-851;

the Court of First

Instance of

2. Refers the case back to the Court of First Instance of the European

Communities;

3. Reserves the costs.

(1) OJ C 211, 8.9.2007.

Re:

Reference for a preliminary ruling — Landgericht Regensburg
— Interpretation of Article 54 of the Convention implementing
the Schengen Agreement of 14 June 1985 between the Govern-
ments of the States of the Benelux Economic Union, the Federal
Republic of Germany and the French Republic on the gradual
abolition of checks at their common borders (OJ 2000 L 239,
p. 19) — Interpretation of ne bis in idem principle — Conviction
in absentia in respect of same acts — No enforcement and
conviction subsequently covered by general amnesty

Operative part of the judgment

The Court:

The ne bis in idem principle, enshrined in Article 54 of the Convention
implementing the Schengen Agreement of 14 June 1985 between the
Governments of the States of the Benelux Economic Union, the Federal
Republic of Germany and the French Republic on the gradual abolition
of checks at their common borders, signed in Schengen (Luxembourg)
on 19 June 1990, is applicable to criminal proceedings instituted in a
Contracting State against an accused whose trial for the same acts as
those for which he faces prosecution was finally disposed of in another
Contracting State, even though, under the law of the State in which he
was convicted, the sentence which was imposed on him could never, on
account of specific features of procedure such as those referred to in the
main proceedings, have been directly enforced.

(1) OJ C 211, 8.9.2007.

Judgment of the Court (Second Chamber) of 11 Decem-
ber 2008 (reference for a preliminary ruling from the
Landgericht Regensburg — Germany) — Criminal proceed-
ings against Klaus Bourquain

(Case C-297/07) (1)

(Convention implementing the Schengen Agreement —
Article 54 — ‘Ne bis in idem’ principle — Scope — Convic-
tion in absentia in respect of the same acts — Concept of
‘finally disposed of’ — Procedural rules of national law —
Concept of ‘penalty which can no longer be enforced’)

Judgment of the Court (Second Chamber) of 11 December
the European Communities v
2008 — Commission of

Freistaat Sachsen

(Case C-334/07 P) (1)

(Appeal — State aid — Proposed scheme for aid to small and
medium-sized enterprises — Compatibility with the common
market — Criteria for assessing State aid — Application
ratione temporis — Proposed scheme notified before the entry
into force of Regulation (EC) No 70/2001 — Decision subse-
quent to entry into force thereof — Legitimate expectations —
Legal certainty — Complete notifications)

(2009/C 32/08)

Language of the case: German

(2009/C 32/09)

Language of the case: German

Referring court

Landgericht Regensburg

Defendant in the criminal proceedings

Klaus Bourquain

Parties

Appellant: Commission of the European Communities (repre-
sented by: K. Gross, acting as Agent)

Other party to the proceedings: Freistaat Sachsen (represented by:
Th. Lübbig, Rechtsanwalt)