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21.11.

2009 EN Official Journal of the European Union C 282/11

Judgment of the Court (Second Chamber) of 1 October Parties to the main proceedings
2009 — Commission of the European Communities v
Kingdom of Belgium Applicant: Gaz de France — Berliner Investissement SA

Defendant: Bundeszentralamt für Steuern


(Case C-219/08) (1)

(Failure of a Member State to fulfil obligations — Freedom to Re:


provide services — Unjustified obstacle — Posting of workers
who are nationals of non-member States) Reference for a preliminary ruling — Finanzgericht Köln
(Germany) — Interpretation of Articles 43 EC, 48 EC, 56(1)
EC and 58(1)(a) and (3) EC, and Article 2(a) and paragraph (f) of
(2009/C 282/18)
the Annex to Council Directive 90/435/EEC of 23 July 1990 on
the common system of taxation applicable in the case of parent
Language of the case: French companies and subsidiaries of different Member States (OJ 1990
L 225, p. 6) — Concept of ‘company of a Member State’ —
Refusal, in the Member State of the subsidiary, to grant an
Parties
exemption from withholding tax to a parent company taking
Applicant: Commission of the European Communities (repre­ the legal form of a ‘société par actions simplifiée’ in French law,
sented by: E. Traversa, J.-P. Keppenne and G. Rozet, Agents) since that form of company does not, at the material time,
appear on the list in the annex to the directive
Defendant: Kingdom of Belgium (represented by: C. Pochet,
Agent, and M. Detry, avocat) Operative part of the judgment
1. Article 2(a) of Council Directive 90/435/EEC of 23 July 1990
Re: on the common system of taxation applicable in the case of parent
Failure of a Member State to fulfil obligations — Infringement companies and subsidiaries of different Member States, read in
of Article 49 EC — Unjustified obstacle to the free provision of conjunction with point (f) of the annex to that directive, must
services — Posting of workers who are nationals of third be interpreted as meaning that a company under French law in the
countries form of a ‘société par actions simplifiée’ cannot be considered to be
a ‘company of a Member State’ within the meaning of that
directive before that directive was amended by Council Directive
Operative part of the judgment 2003/123/EC of 22 December 2003;
The Court: 2. Examination of the question has not revealed any factor of such a
kind as to affect the validity of Article 2(a) of Directive 90/435
1. Dismisses the action; read in conjunction with point (f) of the annex thereto and Article
5(1) of that directive.
2. Orders the Commission of the European Communities and the
Kingdom of Belgium each to bear its own costs..
(1) OJ C 223, 30.08.2008.

(1) OJ C 183, 19.07.2008.

Judgment of the Court (Sixth Chamber) of 1 October 2009


— Commission of the European Communities v Republic
Judgment of the Court (First Chamber) of 1 October 2009 of Malta
(reference for a preliminary ruling from the Finanzgericht
Köln — Germany) — Gaz de France — Berliner (Case C-252/08) (1)
Investissement SA v Bundeszentralamt für Steuern
(Failure of a Member State to fulfil obligations — Pollution
(Case C-247/08) (1) and nuisance — Combustion plants — Limitation of
emissions of certain pollutants into the air)
(Free movement of capital — Profits distributed to a parent
company exempt from withholding tax in the Member State of (2009/C 282/20)
the subsidiary — Concept of ‘company of a Member State’ —
‘Société par actions simplifiée’ under French law) Language of the case: English

(2009/C 282/19)
Parties
Language of the case: German Applicant: Commission of the European Communities (repre­
sented by: L. Flynn and A. Alcover San Pedro, Agents)
Referring court
Defendant: Republic of Malta (represented by: S. Camilleri,
Finanzgericht Köln Agent)
C 282/12 EN Official Journal of the European Union 21.11.2009

Re: Defendant: Finanzamt Klagenfurt


Failure of a Member State to fulfil obligations — Infringement
of Article 4(1) in conjunction with Annexes IV A, VI A and VII
A, and of Article 12 in conjunction with Annexe VIII A.2 of
Directive 2001/80/EC of the European Parliament and of the Re:
Council of 23 October 2001 on the limitation of emissions of Reference for a preliminary ruling — Unabhängiger Finanzsenat,
certain pollutants into the air from large combustion plants (OJ Außenstelle Klagenfurt (Austria) — Interpretation of Article 4(1)
2001 L 309, p. 1) — Non-compliance with the emission limit and (2) of Sixth Council Directive 77/388/EEC of 17 May 1977
values laid down in respect of sulphur dioxide, nitrogen oxides on the harmonisation of the laws of the Member States relating
and dust — Delimara and Marsa installations to turnover taxes — Common system of value added tax:
uniform basis of assessment (OJ 1977 L 145, p. 1) —
Concept of ‘economic activity’ — Organisation by the provincial
organisation of a political party of promotional activities for the
Operative part of the judgment
benefit of the district organisations of that party, taking the
The Court: form of events, the production and delivery of publicity
material and the organisation of an annual ball — Expenses
related to these activities considerably exceeding the revenue
1. Declares that, by failing correctly to apply Directive 2001/80/EC derived from passing on the expense of some of those activities
of the European Parliament and of the Council of 23 October to the district organisations and from the sale of the tickets for
2001 on the limitation of emissions of certain pollutants into the the ball
air from large combustion plants in relation to the operation of the
Phase One steam plant of the Delimara and Marsa power
stations, the Republic of Malta has failed to fulfil its obligations
under Articles 4(1) and 12 of that directive in conjunction with Operative part of the judgment
Part A of Annex IV, Part A of Annex VI, Part A of Annex VII
and Part A.2 of Annex VIII thereto; Article 4(1) and (2) of the Sixth Council Directive (77/388/EEC) 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 is to be interpreted as meaning that,
2. Orders the Republic of Malta to pay the costs. external advertising activities carried out by a section of a Member
State’s political party is not to be regarded as an economic activity.

(1) OJ C 197, 2.08.2008.

(1) OJ C 247, 27.9.2008.

Judgment of the Court (Second Chamber) of 6 October


2009 (reference for a preliminary ruling from the
Unabhängiger Finanzsenat, Außenstelle Klagenfurt
(Austria)) — SPÖ Landesorganisation Kärnten v Judgment of the Court (Sixth Chamber) of 1 October 2009
Finanzamt Klagenfurt — Commission of the European Communities v French
Republic
(Case C-267/08) (1)
(Case C-468/08) (1)
(VAT — Entitlement to deduct input tax — Concept of
‘economic activities’ — Regional groups of a political party (Failure of a Member State to fulfil obligations — Recog­
— Advertising activities benefiting the party’s local groups — nition of professional qualifications — Directive 2005/36/EC
Expenditure relating to those activities exceeding income) — Failure to transpose)

(2009/C 282/21) (2009/C 282/22)

Language of the case: German Language of the case: French

Referring court Parties

Unabhängiger Finanzsenat, Außenstelle Klagenfurt Applicant: Commission of the European Communities (repre­
sented by: H. Støvlbæk and V. Peere, acting as Agents)

Parties to the main proceedings


Defendant: French Republic (represented by: G. de Bergues and
Applicant: SPÖ Landesorganisation Kärnten B. Messmer, acting as Agents)