CELEX: C2003/275/13
Language: en
Date: 2003-11-15 00:00:00
Title: Judgment of the Court of 30 September 2003 in Case C-76/01 P: Comité des industries du coton et des fibres connexes de l'Union européenne (Eurocoton) and Others (Appeal — Dumping — Failure by the Council to adopt a proposal for a regulation imposing definitive anti-dumping duties — Lack of simple majority necessary for the adoption of the regulation — Expiry of the time-limit for the anti-dumping investigation — Definition of a reviewable act — Obligation to state reasons)

15.11.2003             EN                           Official Journal of the European Union                                               C 275/7
                 JUDGMENT OF THE COURT                                      2.    Article 7(2) of Directive 90/435 is to be interpreted as
                                                                                  allowing taxation such as the 5% charge envisaged by the
                                                                                  double taxation convention at issue in the main proceedings
                                                                                  even though that charge, in so far as it applies to dividends
                         (Fifth Chamber)                                          paid by the subsidiary to its parent company, amounts to a
                                                                                  withholding tax within the meaning of Article 5(1) of the
                                                                                  Directive.
                     of 25 September 2003
                                                                            3.    Examination of the third question has revealed no formal or
                                                                                  procedural defects such as to affect the validity of Article 7(2)
in Case C-58/01 (Reference for a preliminary ruling from                          of the Directive.
the Special Commissioners of Income Tax): Océ van der
   Grinten NV v Commissioners of Inland Revenue (1),
                                                                            (1) OJ C 134 of 5.5.2001.
(Directive 90/435/EEC — Corporation tax — Parent com-
panies and subsidiaries of different Member States —
                  Concept of withholding tax)
                         (2003/C 275/12)
                                                                                             JUDGMENT OF THE COURT
                   (Language of the case: English)
                                                                                                  of 30 September 2003
                                                                            in Case C-76/01 P: Comité des industries du coton et des
In Case C-58/01: Reference to the Court under Article 234 EC                fibres connexes de l’Union européenne (Eurocoton) and
by the Special Commissioners of Income Tax (United                                                       Others (1)
Kingdom) for a preliminary ruling in the proceedings pending
before them between Océ van der Grinten NV and Com-
missioners of Inland Revenue, on the interpretation of                      (Appeal — Dumping — Failure by the Council to adopt a
Article 5(1) of Council Directive 90/435/EEC of 23 July 1990                proposal for a regulation imposing definitive anti-dumping
on the common system of taxation applicable in the case of                  duties — Lack of simple majority necessary for the adoption
parent companies and subsidiaries of different Member States                of the regulation — Expiry of the time-limit for the anti-
(OJ 1990 L 225, p. 6, corrigendum at OJ 1991 L 23, p. 35)                   dumping investigation — Definition of a reviewable act —
and the interpretation and validity of Article 7(2) of that                                     Obligation to state reasons)
directive, the Court (Fifth Chamber), composed of: M. Wathelet
(Rapporteur), President of the Chamber, D.A.O. Edward, A. La
Pergola, P. Jann and A. Rosas, Judges; A. Tizzano, Advocate                                           (2003/C 275/13)
General; L. Hewlett, Principal Administrator, for the Registrar,
has given a judgment on 25 September 2003, in which it has
ruled:                                                                                          (Language of the case: English)
1.   In so far as taxation such as the 5 % charge envisaged by the
     double taxation convention at issue in the main proceedings is
     imposed on the dividends paid by a subsidiary resident in the          In Case C-76/01 P, Comité des industries du coton et des fibres
     United Kingdom to its parent company resident in another               connexes de l’Union européenne (Eurocoton), established in
     Member State, it amounts to a withholding tax on profits               Brussels (Belgium), Ettlin Gesellschaft für Spinnerei und Webe-
     which a subsidiary distributes to its parent company within the        rei AG, established in Ettlingen (Germany), Textil Hof Weberei
     meaning of Article 5(1) of Council Directive 90/435/EEC of             GmbH & Co. KG, established in Hof (Germany), H. Hecking
     23 July 1990 on the common system of taxation applicable in            Söhne GmbH & Co., established in Stadtlohn (Germany),
     the case of parent companies and subsidiaries of different             Spinnweberei Uhingen GmbH, established in Uhingen
     Member States. On the other hand, such taxation does not               (Germany), F. A. Kümpers GmbH & Co., established in Rheine
     amount to a withholding tax prohibited by Article 5(1) of the          (Germany), Tenthorey SA, established in Éloyes (France), Les
     Directive in so far as it is imposed on the tax credit to which        tissages des héritiers de G. Perrin — Groupe Alain Thirion
     that distribution of dividends confers entitlement in the United       (HPG–GAT Tissages), established in Cornimont (France), Étab-
     Kingdom.                                                               lissements des fils de Victor Perrin SARL, established in
 ---pagebreak--- C 275/8                 EN                           Official Journal of the European Union                                            15.11.2003
Thiéfosse (France), Filatures et tissages de Saulxures-sur-Mose-                               JUDGMENT OF THE COURT
lotte, established in Saulxures-sur-Moselotte (France), Tissage
Mouline Thillot, established in Thillot (France), Filature Nigge-                                   of 23 September 2003
ler & Küpfer SpA, established in Capriolo (Italy), Standardtela
SpA, established in Milan (Italy), (Agents: C. Stanbrook and                 in Case C-78/01 (Reference for a preliminary ruling from
P. Bentley, QC): Appeal against the judgment of the Court of                 the Bundesgerichtshof): Bundesverband Güterkraftver-
First Instance of the European Communities (Second Chamber,                  kehr und Logistik eV (BGL) v Bundesrepublik Deutsch-
Extended Composition) of 29 November 2002 in Case T-213/                     land, represented by the Hauptzollamt Friedrichshafen (1)
97 Eurocoton and Others v Council [2000] ECR II-3727,
seeking to have that judgment set aside, the other parties to                (Free movement of goods — External transit operation —
the proceedings being: Council of the European Union (Agents:                Transport under cover of a TIR carnet — Offences or
S. Marquardt acting as Agent, assisted by G.M. Berrisch and                  irregularities — Possibility for a guaranteeing association to
H.P. Nehl), United Kingdom of Great Britain and Northern                     prove the place where the offence or irregularity was
Ireland (Agent: K. Manji) and Tessival SpA, established in                   committed — Time-limit for furnishing proof — Existence
Azzano S. Paolo (Italy), the Court, composed of: G.C. Rodrí-                 of an obligation for the Member State which detects an
guez Iglesias, President, M. Wathelet and C.W.A. Timmermans                  offence or irregularity to investigate the place where it was
(Presidents of Chambers), C. Gulmann, D.A.O. Edward, P. Jann,                                             committed)
F. Macken, N. Colneric, S. von Bahr (Rapporteur), J.N. Cunha
Rodrigues and A. Rosas, Judges; F.G. Jacobs, Advocate General;                                         (2003/C 275/14)
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 30 September 2003, in which it:                                                   (Language of the case: German)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                                 in the European Court Reports)
1.    Sets aside the judgment of the Court of First Instance of the
      European Communities of 29 November 2000 in Case T-213/
      97 Eurocoton and Others v Council in so far as it concerns the
      appellants.                                                            In Case C-78/01: Reference to the Court under Article 234 EC
                                                                             by the Bundesgerichtshof (Germany) for a preliminary ruling
                                                                             in the proceedings pending before that court between Bundes-
                                                                             verband Güterkraftverkehr und Logistik eV (BGL) and Bundes-
2.    Sets aside the decision of the Council of the European Union of        republik Deutschland, represented by the Hauptzollamt Fried-
      16 May 1997, which became final on 21 May 1997, not to                 richshafen, third party: Préservatrice Foncière Tiard SA, on
      adopt the proposal for a Council regulation (EC) imposing a            the interpretation of Articles 454 and 455 of Commission
      definitive anti-dumping duty on the import of unbleached               Regulation (EEC) No 2454/93 of 2 July 1993 laying down
      cotton fabric from the People’s Republic of China, Egypt, India,       provisions for the implementation of Council Regulation (EEC)
      Indonesia, Pakistan and Turkey (COM (97) 160 final),                   No 2913/92 establishing the Community Customs Code (OJ
      submitted by the Commission of the European Communities on             1993 L 253, p. 1), the Court, composed of: G.C. Rodríguez
      21 April 1997, in so far as it concerns the appellants.                Iglesias, President, M. Wathelet, R. Schintgen and
                                                                             C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
                                                                             A. La Pergola, V. Skouris, F. Macken, N. Colneric, J.N. Cunha
3.    Dismisses the action for damages.                                      Rodrigues and A. Rosas (Rapporteur), Judges; P. Léger, Advo-
                                                                             cate General; H. von Holstein, Deputy Registrar, has given a
                                                                             judgment on 23 September 2003, in which it has ruled:
4.    Orders the Council of the European Union and the appellants
      to bear their own costs at first instance.                             1.    The first subparagraph of Article 454(3) of Commission
                                                                                   Regulation (EEC) No 2454/93 of 2 July 1993 laying down
                                                                                   provisions for the implementation of Council Regulation (EEC)
5.    Orders the Council of the European Union to pay the costs of                 No 2913/92 establishing the Community Customs Code
      the appeal.                                                                  does not preclude a guaranteeing association against which
                                                                                   proceedings are brought by a Member State for payment of
                                                                                   customs duties on the basis of the guarantee contract it has
                                                                                   concluded with that State in accordance with the Customs
6.    Orders the United Kingdom of Great Britain and Northern                      Convention on the International Transport of Goods under
      Ireland to bear its own costs both at first instance and on                  cover of TIR Carnets from being able to furnish proof of the
      appeal.                                                                      place where the offence or irregularity was committed, provided
                                                                                   that that proof is furnished within the period laid down in that
                                                                                   provision, that time-limit being peremptory.
(1) OJ C 108 of 7.4.2001.                                                    2.    The first paragraph of Article 454(3) and Article 455 of
                                                                                   Regulation No 2454/93 must be interpreted as meaning that
                                                                                   the guaranteeing association has available, to furnish proof of
                                                                                   the place where the offence or irregularity was actually commit-
                                                                                   ted, a period of two years running from the date of the claim
                                                                                   for payment made to it.