Case C-285/07: Judgment of the Court (First Chamber) of 11 December 2008 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — A.T. v Finanzamt Stuttgart-Körperschaften (Directive 90/434/EEC — Cross-border exchange of shares — Fiscal neutrality — Conditions — Articles 43 EC and 56 EC — Legislation of a Member State making the continued use of the book value of the shares transferred in exchange for the new shares received, and therefore the fiscal neutrality of the transfer, conditional on the carryover of that value in the tax balance sheet of the acquiring foreign company — Compatibility)
Date: 2008-12-11
Institutions: Court of Justice
Subjects: Germany, accounting, approximation of laws, interpretation of the law, intra-EU trade, quasi-fiscal charge, tax harmonisation, tax system

7.2.2009

EN

Official Journal of the European Union

C 32/3

television channels a remuneration model according to which the
amount of the royalties corresponds partly to the revenue of those
channels, provided that that part is proportionate overall to the
quantity of musical works protected by copyright actually broadcast
or likely to be broadcast, unless another method enables the use of
those works and the audience to be identified more precisely
without however resulting in a disproportionate increase in the
costs incurred for the management of contracts and the supervision
of the use of those works.

2) Article 82 EC must be interpreted as meaning that, by calculating
the royalties with respect to remuneration paid for the broadcast of
in a different manner
musical works protected by copyright
according to whether
the companies concerned are commercial
companies or public service undertakings, a copyright management
organisation is likely to exploit in an abusive manner its dominant
position within the meaning of that article if it applies with respect
to those companies dissimilar conditions to equivalent services and
if it places them as a result at a competitive disadvantage, unless
such a practice may be objectively justified.

(1) OJ C 95, 28.4.2007.

monitoring of taxable transactions carried out during a series of
tax periods

Operative part of the judgment

The Court:

1. declares that, by extending, by Article 2(44) of Law No 350 of
24 December 2003 relating to the provisions for drawing up the
annual and pluriannual budget of
the State (Finance Law for
2004) (legge n. 350, disposizioni per la formazione del bilancio
annuale e pluriennale dello Stato (legge finanziaria 2004),
to
2002 the tax amnesty provided for in Articles 8 and 9 of Law
No 289 of 27 December 2002 relating to the provisions for
drawing up the annual and pluriannual budget of
the State
(Finance Law for 2003) (legge n. 289, disposizioni per la forma-
zione del bilancio annuale e pluriennale dello Stato (legge finan-
ziaria 2003), and consequently providing generally and indiscrimi-
nately that assessment of taxable transactions effected in the 2002
tax period is to be discontinued, the Italian Republic has failed to
fulfil its obligations under Article 2(1)(a), (c) and (d) and Arti-
cles 193 to 273 of Council Directive 2006/112/EC of
28 November 2006 on the common system of value added tax,
which as from 1 January 2007 replaced Articles 2 and 22 of
Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to turn-
over taxes — Common system of value added tax: uniform basis of
assessment, and under Article 10 EC;

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

2. Orders the Italian Republic to pay the costs.

Italian Republic

(Case C-174/07) (1)

(1) OJ C 140, 23.6.2007.

of a Member State

(Failure
obligations —
Article 10 EC — Directive 2006/112/EC — Sixth VAT Direc-
tive — Obligations under domestic rules — Monitoring of
taxable transactions — Amnesty)

fulfil

to

(2009/C 32/04)

Language of the case: Italian

Judgment of
the Court (First Chamber) of 11 Decem-
ber 2008 (reference for a preliminary ruling from the
Bundesfinanzhof — Germany) — A.T. v Finanzamt
Stuttgart-Körperschaften

Parties

(Case C-285/07) (1)

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and M. Alfonso, acting as Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia, acting
as Agent, and G. De Bellis, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 2 and 22 of Directive 77/388/EEC: Sixth Council
Directive of 17 May 1977 on the harmonisation of the laws of
the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment (OJ 1977
L 145, p. 1), replaced, as from 1 January 2007 by Council
Directive 2006/112/EC of 28 November 2006 on the common
system of value added tax (OJ 2006 L 347, p. 1) — Obligations
under domestic rules — National law which discontinues the

(Directive 90/434/EEC — Cross-border exchange of shares —
Fiscal neutrality — Conditions — Articles 43 EC and 56 EC
— Legislation of a Member State making the continued use of
the book value of the shares transferred in exchange for the
new shares received, and therefore the fiscal neutrality of the
transfer, conditional on the carryover of that value in the tax
acquiring
foreign company —
balance
Compatibility)

sheet

the

of

(2009/C 32/05)

Language of the case: German

Referring court

Bundesfinanzhof

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)