# C_2011030EN.01002201.xml

| 29.1.2011 | EN | Official Journal of the European Union | C 30/22 |
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29.1.2011

EN

Official Journal of the European Union

C 30/22

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Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 16 November 2010 — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Safilo SpA

(Case C-529/10)

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2011/C 30/36

Language of the case: Italian

Referring court

Referring court

Corte Suprema di Cassazione (Italy)

Parties to the main proceedings

Parties to the main proceedings

Appellants: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

Appellants:

Respondent: Safilo SpA

Respondent:

Questions referred

Questions referred

| 1. | Does the abuse of rights principle in taxation matters, as defined in Cases C-255/02 Halifax and Others [2006] ECR I-1609 and C-425/06 Part Service [2008] ECR I-897, constitute a fundamental principle of Community law only in the field of harmonised taxes and in matters governed by secondary Community law provisions, or does it extend, as a category of abuse of fundamental freedoms, to matters involving non harmonised taxes, such as direct taxes, where the tax relates to cross-border financial matters, such as the acquisition by a company of rights of usufruct over the shares of a second company established in another Member State or in a non-Member State? |
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1.

Does the abuse of rights principle in taxation matters, as defined in Cases C-255/02 Halifax and Others [2006] ECR I-1609 and C-425/06 Part Service [2008] ECR I-897, constitute a fundamental principle of Community law only in the field of harmonised taxes and in matters governed by secondary Community law provisions, or does it extend, as a category of abuse of fundamental freedoms, to matters involving non harmonised taxes, such as direct taxes, where the tax relates to cross-border financial matters, such as the acquisition by a company of rights of usufruct over the shares of a second company established in another Member State or in a non-Member State?

Halifax and Others

Part Service

| 2. | Irrespective of the answer to the first question, is there a Community interest in provision being made by the Member States for adequate anti-avoidance measures in the field of non-harmonised taxes, and is such an interest thwarted by the failure to apply — in the context of a tax amnesty measure — the abuse of rights principle which is also recognised as a rule of national law and, if so, are the principles that may be inferred from Article 4(3) of the Treaty on European Union infringed? |
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2.

Irrespective of the answer to the first question, is there a Community interest in provision being made by the Member States for adequate anti-avoidance measures in the field of non-harmonised taxes, and is such an interest thwarted by the failure to apply — in the context of a tax amnesty measure — the abuse of rights principle which is also recognised as a rule of national law and, if so, are the principles that may be inferred from Article 4(3) of the Treaty on European Union infringed?

| 3. | Do the principles governing the single market impliedly preclude not only extraordinary measures in the form of a total waiver of a tax claim, but also a special measure for concluding tax disputes, the application of which is limited in time and conditional upon payment of only part of the tax due, which is considerably less than the full amount? |
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3.

Do the principles governing the single market impliedly preclude not only extraordinary measures in the form of a total waiver of a tax claim, but also a special measure for concluding tax disputes, the application of which is limited in time and conditional upon payment of only part of the tax due, which is considerably less than the full amount?

| 4. | Do the principle of non-discrimination and the rules governing State aid preclude the system for concluding tax disputes at issue in the present case? |
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4.

Do the principle of non-discrimination and the rules governing State aid preclude the system for concluding tax disputes at issue in the present case?

| 5. | Does the principle of the effective application of Community law preclude extraordinary procedural rules of limited duration which remove the power to review legality (in particular concerning the correct interpretation and application of Community law) from the court of last instance, which is under an obligation to refer questions of validity and interpretation requiring a preliminary ruling to the Court of Justice of the European Union? |
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5.

Does the principle of the effective application of Community law preclude extraordinary procedural rules of limited duration which remove the power to review legality (in particular concerning the correct interpretation and application of Community law) from the court of last instance, which is under an obligation to refer questions of validity and interpretation requiring a preliminary ruling to the Court of Justice of the European Union?

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