EN

Official Journal of the European Union

C 290/2

(Case C-370/11)

2011/C 290/02

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Mölls, Agent)

Defendant: Kingdom of Belgium

Form of order sought

—find that, by maintaining rules according to which the capital gains obtained on the buying back of shares of undertakings for collective investment which are not authorised in accordance with Directive 85/611/EEC are not taxable, where those undertakings are established in Belgium, whereas the capital gains obtained on the buying back of shares of such undertakings established in Norway or Iceland are taxable, the Kingdom of Belgium has failed to fulfil its obligations under Articles 36 and 40 of the Agreement on the European Economic Area;

—order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission criticises the national provisions at issue in so far as they have the effect of deterring Belgian residents from investing in undertakings for collective investment established in Norway or Iceland, because capital gains obtained on the buying back of shares of those undertakings cannot benefit from the tax exemption applicable to capital gains obtained on the buying back of shares of undertakings for collective investment established in Belgium.

The Commission claims that such a difference of treatment restricts the free movement of capital guaranteed by Article 40 of the EEA Agreement. Similarly, it hinders the freedom to provide services which amounts to an infringement of Article 36 of the EEA Agreement.

In response to the objections raised by the Belgian authorities, the Commission states, first, that the distinction made by Belgian legislation within the category of undertakings for collective investment established in the European Union, that is, whether they are authorised or not in accordance with Directive 85/611/EEC, is not the subject of the present action. Second and third, the Commission rejects the arguments that the abovementioned measures are justified by reasons linked to the effectiveness of fiscal controls or the absence of measures for the exchange of information. In that context, the Commission notes that Belgium, Norway and Iceland have ratified the Convention on mutual administrative assistance in tax matters drafted under the auspices of the OECD and the Council of Europe and that the double taxation conventions concluded between Belgium, and Norway and Iceland respectively, provide for the exchange of information among those countries.

Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), OJ 1985 L 375, p. 3.

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