# C_2006060EN.01001902.xml

| 11.3.2006 | EN | Official Journal of the European Union | C 60/19 |
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11.3.2006

EN

Official Journal of the European Union

C 60/19

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Reference for a preliminary ruling from the Cour de Cassation (France) by order of that court of 13 December 2005 in Elisa (Européenne et luxembourgeoise d'investissements SA) v Directeur général des Impôts, Direction des services généraux et de l'informatique and Ministère public

(Case C-451/05)

(2006/C 60/38)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Cour de Cassation (Court of Cassation, France) of 13 December 2005, received at the Court Registry on 19 December 2005, for a preliminary ruling in the proceedings between Elisa (Européenne et luxembourgeoise d'investissements SA) and the Directeur général des Impôts (Director-General of Taxes, General Services and Information Technology Directorate) Ministère public (State Council's Office) on the following questions:

| 1. | Do Articles 52 et seq. and 73b et seq. of the EC Treaty preclude legislation such as that laid down by Article 990D et seq. of the General Tax Code which grants legal persons having their effective centre of management in France entitlement to exemption from the tax on the commercial value of properties owned in France and which, as regards legal persons having their effective centre of management in the territory of another country, even if it is a Member State of the European Union, makes that entitlement conditional on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between France and that State or on there being a requirement, under a treaty including a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than legal persons having their effective centre of management in France? |
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1.

Do Articles 52 et seq. and 73b et seq. of the EC Treaty preclude legislation such as that laid down by Article 990D et seq. of the General Tax Code which grants legal persons having their effective centre of management in France entitlement to exemption from the tax on the commercial value of properties owned in France and which, as regards legal persons having their effective centre of management in the territory of another country, even if it is a Member State of the European Union, makes that entitlement conditional on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between France and that State or on there being a requirement, under a treaty including a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than legal persons having their effective centre of management in France?

| 2. | Does a tax such as the tax at issue constitute a tax on capital within the meaning of Article 1 of the Council Directive of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation? (1) |
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2.

Does a tax such as the tax at issue constitute a tax on capital within the meaning of Article 1 of the Council Directive of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation? (1)

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| 3. | If so, do the obligations imposed on Member States concerning mutual assistance in the field of taxation by the Directive of 19 December 1977, cited above, preclude the implementation by the Member States, under a bilateral convention on administrative assistance in the field of taxation, of obligations of the same kind excluding a category of taxpayers such as Luxembourg holding companies? |
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3.

If so, do the obligations imposed on Member States concerning mutual assistance in the field of taxation by the Directive of 19 December 1977, cited above, preclude the implementation by the Member States, under a bilateral convention on administrative assistance in the field of taxation, of obligations of the same kind excluding a category of taxpayers such as Luxembourg holding companies?

| 4. | Do Articles 52 et seq. and 73b et seq. of the EC Treaty oblige a Member State which has concluded with another country, whether or not a member of the European Union, a convention including a clause prohibiting discrimination in the field of taxation to accord a legal person having its effective centre of management in the territory of another Member State the same benefits as those provided for by that clause, when that legal person owns one or several properties in the territory of the first Member State and the second Member State is not linked to the first by an equivalent clause? |
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4.

Do Articles 52 et seq. and 73b et seq. of the EC Treaty oblige a Member State which has concluded with another country, whether or not a member of the European Union, a convention including a clause prohibiting discrimination in the field of taxation to accord a legal person having its effective centre of management in the territory of another Member State the same benefits as those provided for by that clause, when that legal person owns one or several properties in the territory of the first Member State and the second Member State is not linked to the first by an equivalent clause?

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(1)  Council Directive 77/799 EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15).

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