30.8.2008

EN

Official Journal of the European Union

C 223/25

(Case C-250/08)

(2008/C 223/38)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and P. van Nuffel, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

—Declare that, by taking into account, in the Flemish Region, for the assessment of a tax advantage upon the purchase of immovable property intended as a new principal place of residence, the amount of registration fees paid upon the purchase of a previous principal place of residence only where the latter was situated in the Flemish Region but not where it was in a Member State other than Belgium or in an EEA State, the Kingdom of Belgium has failed to fulfil its obligations under Articles 18, 43 and 56 of the EC Treaty and Articles 31 and 40 of the EEA Agreement;

—order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

Upon the purchase of a principal place of residence in the Flemish region, the Belgian legislation on registration fees, as in force in the Flemish Region, provides for a reduction of registration fees in an amount corresponding to the registration fees paid upon the purchase of a previous principal place of residence in the Flemish Region, provided that the previous principal place of residence is sold in the same period. The Commission considers that this legislation discriminates against Union citizens who exercise the right of free movement, that it discriminates against Union citizens who exercise the right of establishment, and that it restricts investment in immovable property in the Flemish Region with capital from Member States other than Belgium and therefore that this legislation in principle conflicts with Articles 18, and 43 of the EC Treaty and Article 31 of the EEA Agreement, and Article 56 of the EC Treaty and Article 40 of the EEA Agreement, respectively. The Commission submits that there are no overriding reasons of public interest that could justify these breaches. Nor can the defendant rely on the need to ensure the cohesion of the tax system, because this case concerns two separate fiscal situations, each of which is governed by its own rules applicable to the situation in question.