Case C-25/09: 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
Date: 2009-01-19
Institutions: Court of Justice
Subjects: fruit juice, interpretation of the law, marketing, provision of services, stone fruit

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

C 82/14

EN

Official Journal of the European Union

4.4.2009

Parties to the main proceedings

Applicant: Sió-Eckes Kft.

Appeal brought on 21 January 2009 by the French
Republic against the judgment delivered on 4 December
2008 by the Court of First Instance (Seventh Chamber) in
Case T-284/08 People's Mojahedin Organisation of Iran v
Council of the European Union

Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi
Szerve

Questions referred

1. May Article 2(1) of Council Regulation (EC) No 2201/96 (1)
be interpreted as meaning that, in accordance with Annex I,
the production aid scheme applies, not only to peaches in
syrup and/or in natural
juice included in CN code
ex 2008 70 61, but also to the products with other CN
codes listed in that annex (ex 2008 70 69, etc)?

fruit

2. Does the processor which manufactures products under CN
code ex 2008 70 92 comply with the provisions of Regu-
lation No 2201/96?

3. May Article

2(1)

of Commission Regulation

(EC)
No 1535/2003 (2) be interpreted as meaning that
the
ex 2008 70 61,
products
ex
2008 70 79,
ex
ex 2008 70 92, ex 2008 70 94 and ex 2008 70 99 are also
finished products within the meaning of the regulation?

by CN codes
2008 70 71,

2008 70 69,

designated

ex

4. In so far as, in accordance with the answers to the previous
questions, the definition of finished products is applicable
only to the peaches described in Article 3 of Commission
Regulation (EEC) No 2320/89 (3), why are the CN codes of
other products included in the regulations previously cited?

5. In accordance with the regulations cited above, may the
products resulting from the separate phases of peach proces-
sing be regarded as finished products, regardless of whether
they may be marketed (for example, the pulp)?

(1) Council Regulation (EC) No 2201/96 of 28 October 1996 on the
common organisation of the markets in processed fruit and vege-
table products (OJ 1996 L 297, p. 29).

(2) Commission Regulation (EC) No 1535/2003 of 29 August 2003
laying down detailed rules for applying Council Regulation (EC)
No 2201/96 as regards the aid scheme for products processed from
fruit and vegetables (OJ 2003 L 218, p. 14).

(3) Commission Regulation (EEC) No 2320/89 of 28 July 1989 of
minimum quality requirements for peaches in syrup and peaches in
natural fruit juice for the application of the production aid scheme
(OJ 1989 L 220, p. 54).

(Case C-27/09 P)

(2009/C 82/26)

Language of the case: English

Parties

Appellant: French Republic (represented by: E. Belliard, G. de
Bergues, A.-L. During, acting as Agents)

Other parties to the proceedings: People's Mojahedin Organisation
of Iran, Council of the European Union, Commission of the
European Communities

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities of 4 December 2008 in Case
T-284/08 People's Mojahedin Organisation of
Iran v
Council;

— itself give final

in the case by dismissing the
PMOI's action or refer the case back to the Court of First
Instance.

judgment

Pleas in law and main arguments

The French Government considers that
the judgment under
appeal should be set aside, first, because the Court of First
Instance erred in law by holding that the Council had adopted
Decision 2008/583/EC (1) in disregard of the PMOI's rights of
defence, without taking account of the specific circumstances of
the adoption of that decision; second, because the Court erred
in law by considering that the judicial procedure opened in
France against alleged members of the PMOI did not constitute
a decision meeting the definition in Article 1(4) of Common
Position 2001/931/CFSP of 27 December 2001 on the applica-
tion of specific measures to combat
finally,
because the Court erred in law by holding that the refusal by
the Council to communicate point 3 a) of one of the three
documents supplied by the French authorities to the Council in
support of their request for the inclusion of the PMOI in the list
established by Decision 2008/583/EC, and sent to the Court by
the Council in response to the Court Order of 26 September

terrorism; and,