Language of document :

Judgment of the Court (First Chamber) of 6 October 2009 - Commission of the European Communities v Kingdom of Spain

(Case C-153/08) 1

(Failure of a Member State to fulfil obligations - Freedom to provide services - Article 49 EC and Article 36 of the EEA Agreement - Direct taxation - Income tax - Tax exemption restricted to winnings from lotteries and games of chance organised by certain national bodies and entities)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and L. Lozano Palacios, Agents)

Defendant: Kingdom of Spain (represented by: F. Díez Moreno, Agent)

Re:

Failure of a Member State to fulfil obligations - Infringement of Article 49 EC and Article 36 EEA - National legislation under which amounts won in lotteries and games of chance organised abroad, but not in certain lotteries or games of chance organised in Spain, are subject to income tax.

Operative part of the judgment

The Court:

1.    Declares that, by maintaining in force fiscal legislation which exempts winnings from lotteries, games of chance and betting organised in the Kingdom of Spain by certain public bodies and entities established in that Member State and pursuing social or charitable non-profit-making activities, without that same exemption being granted to winnings from lotteries, games of chance and betting organised by bodies and entities established in another Member State of the European Union or European Economic Area and pursuing the same type of activities, the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC and Article 36 of the Agreement on the European Economic Area of 2 May 1992;

2.    Dismisses the action as to the remainder;

3.    Orders the Commission of the European Communities and the Kingdom of Spain to bear their own costs.

____________

1 - OJ C 142, 7.6.2008.