CELEX: C2005/281/22
Language: en
Date: 2005-11-12 00:00:00
Title: Case C-345/05: Action brought on 21 September 2005 by the Commission of the European Communities against the Portuguese Republic

12.11.2005   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 281/12
            
         Action brought on 21 September 2005 by the Commission of the European Communities against the Portuguese Republic
   (Case C-345/05)
   (2005/C 281/22)
   Language of the case: Portuguese
   An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 21 September 2005 by the Commission of the European Communities, represented by R. Lyal and M. Afonso, acting as Agents, with an address for service in Luxembourg.
   The Commission claims that the Court should:
   
               1.
            
            
               declare that, by having maintained in force fiscal provisions making entitlement to exemption from tax on capital gains arising from the transfer for valuable consideration of real property intended for the taxable person's own and permanent residence or for that of a member of his family subject, as provided for by Article 10(5) of the Personal Income Tax Code, to the condition, laid down in subparagraph (a) of that provision, that the gains realised should be reinvested in the purchase of property situated in Portuguese territory, the Portuguese Republic has failed to fulfil its obligations under Articles 18, 39, 43 and 56(1) EC, and under Articles 28, 31 and 40 of the Agreement on the European Economic Area;
            
         
               2.
            
            
               order the Portuguese Republic to pay the costs.
            
         Pleas in law and main arguments
   The condition requiring the reinvestment of gains realised on the sale of real property used for the personal and permanent residence of a taxable person or for that of a member of his family in the purchase of other real property in Portuguese territory clearly constitutes an impediment to the fundamental freedoms guaranteed by the EC Treaty and the EEA Agreement.
   The explanations and justifications for that condition presented by the Portuguese Republic do not merit consideration.