Case C-20/09: Action brought on 15 January 2009 — Commission of the European Communities v Portuguese Republic
Date: 2009-01-15
Institutions: Court of Justice
Subjects: European Commission, European Economic Area, Portugal, action for failure to fulfil an obligation, heritage protection, tax system

C 82/12

EN

Official Journal of the European Union

4.4.2009

By his third plea, the appellant submits that the Court of First
Instance erred in law in that it found that the AECE did not
misuse its powers. The stated aim of employment of temporary
agents was to reduce the number of posts vacant within the
Commission and, in particular, to make up for the shortage of
candidates who had been successful in competitions.

The latter aim was in no way met by the refusal to extend the
appellant's contract following application of the rule prohibiting
aggregation of service, since his post was advertised before any
competition lists were published. Moreover, another temporary
agent was given a long-term contract in that post, while the
contracts of all the other temporary agents employed on a
short-term basis in the same directorate were automatically
extended, without prior advertisement of their posts.

Finally, the principle of equal treatment has been breached since
all the other temporary agents who were in a comparable situa-
tion apart
from their length of service, had their contracts
extended without their posts being advertised, unlike the proce-
dure adopted in the case of the appellant. In that context, the
burden of proof was wrongly reversed in the proceedings before
the Court of First Instance, since it is for the defendant — and
not for the applicant — to prove that rules which it laid down
itself have been followed.

provision of services also where the services are, by
agreement, provided in several Member States?

If the answer to that question is in the affirmative,

Should the provision referred to be interpreted as
meaning that

(b) the place of performance of the obligation that is charac-
teristic of the contract must be determined by reference
to the place where the service provider's centre of busi-
ness is located, which is to be determined by reference to
the amount of time spent and the importance of the
activity;

(c) in the event that it is not possible to determine a centre
of business, an action in respect of all claims founded on
the contract may be brought, at the applicant's choice, in
any place of performance of the service within the Com-
munity?

2. If the answer to the first question is in the negative:

Is
Article 5(1)(a) of Regulation No 44/2001 applicable in the
case of a contract for the provision of services also where the
services are, by agreement, provided in several Member
States?

(1) OJ 2001 L 12, p. 1.

Reference for a preliminary ruling from the Oberlandes-
gericht Wien (Austria)
lodged on 15 January 2009 —
Wood Floor Solutions Andreas Domberger GmbH v Silva
Trade, SA

Action brought on 15 January 2009 — Commission of the
European Communities v Portuguese Republic

(Case C-19/09)

(2009/C 82/22)

Language of the case: German

(Case C-20/09)

(2009/C 82/23)

Language of the case: Portuguese

Referring court

Oberlandesgericht Wien

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and A. Caeiros, Agents)

Parties to the main proceedings

Defendant: Portuguese Republic

Applicant: Wood Floor Solutions Andreas Domberger GmbH

Defendant: Silva Trade, SA

Form of order sought

Questions referred

1.

(a) Is the second indent of Article 5(1)(b) of Council Regu-
lation (EC) No 44/2001 of 22 December 2000 on juris-
diction and the recognition and enforcement of judg-
ments in civil and commercial matters (1)
(‘Regulation
No 44/2001’) applicable in the case of a contract for the

— A declaration that, by providing, in connection with adjust-
ment in accordance with Law No 39-A/2005, preferential
tax treatment for public debt securities issued by the Portu-
guese State alone, the Portuguese Republic has failed to fulfil
its obligations under Article 56 of
the EC Treaty and
Article 40 of the Agreement on the European Economic
Area (EEA);

— an order that the Portuguese Republic should pay the costs.

4.4.2009

EN

Official Journal of the European Union

C 82/13

Pleas in law and main arguments

Action brought on 15 January 2009 — Commission of the
European Communities v Grand Duchy of Luxembourg

In September 2005 the Commission received a complaint
concerning the incompatibility of certain provisions of
the
‘Regime Excepcional de Regularização Tributária de elementos
patrimoniais que não se encontrem no território português em
31 de Dezembro de 2004’ (Extraordinary Scheme for the tax
adjustment of financial assets not situated within Portuguese
territory
Law
No 39-A/2005.

on 31 December 2004),

approved

by

The effect of that Extraordinary Scheme is that persons liable to
tax must, in the context of tax adjustment, pay the sum corre-
sponding to the application of a rate of 5 % on the value of the
financial assets appearing in the tax adjustment declaration and
that if any or all of the financial assets listed in that declaration
were Portuguese State securities, that rate would be reduced to
half in respect of those securities and that reduction would be
applied also to other financial assets if their respective value had
been reinvested in Portuguese State securities before the date on
which the tax adjustment declaration was submitted.

the Extraordinary Scheme
The Commission maintains that
confers an advantage, with regard to the repatriation of
pecuniary items and to investment in Portuguese State securities,
consisting of the application of a reduced rate to pecuniary
items that are Portuguese State securities or to the value of
financial assets reinvested in Portuguese State securities. As a
matter of fact, persons using that scheme are discouraged from
keeping their adjusted assets in forms other than Portuguese
State securities.

The Court of Justice of the European Communities has already
declared that a provision of domestic fiscal
law capable of
dissuading tax-payers from investing in other Member States
amounts to a restriction of free movement of capital for the
purpose of Article 56 EC.

In the present case, the Commission, while not denying that
public debt securities may enjoy more favourable treatment,
maintains that a lower tax rate applicable only to adjusted finan-
cial assets that are Portuguese State securities constitutes a
discriminatory restriction of movements of capital prohibited by
Article 56 EC and cannot be vindicated on the basis of
Article 58 EC.

The rules of
the EEA Agreement relating to movements of
capital are, substantially, the same as those laid down in the EC
Treaty. In consequence, the fact that the persons who could
make use of the Extraordinary Scheme for the tax adjustment of
financial assets have been dissuaded from keeping their adjusted
financial assets in Norway, Lichtenstein or Iceland also consti-
tutes a restriction of movements of capital, prohibited by
Article 40 of the EEA Agreement.

(Case C-22/09)

(2009/C 82/24)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and L. de Schietere de Lophem, acting as
Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— Declare that, by failing to adopt all the laws, regulations and
administrative provisions necessary to comply with Directive
2002/91/EC of the European Parliament and of the Council
of 16 December 2002 on the energy performance of build-
ings (1), or, in any event, by failing to notify them to the
Commission, the Grand Duchy of Luxembourg has failed to
fulfil its obligations under that directive;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

for

period

prescribed

of Directive
transposition
The
2002/91/EC expired on 4 January 2006. At
the time the
present action was brought, the defendant had not yet adopted
all the measures necessary to transpose the Directive or, in any
event, had not notified those measures to the Commission.

(1) OJ 2003 L 1, p. 65.

Reference for a preliminary ruling from the Fővarosi
Bíróság (Hungary) lodged on 19 January 2009 — Sió-Eckes
Kft. v Mezőgazdasági és Vidékfejlesztési Hivatal Központi
Szerve

(Case C-25/09)

(2009/C 82/25)

Language of the case:Hungarian

Referring court

Fővarosi Bíróság