# C_2013147EN.01001201.xml

| 25.5.2013 | EN | Official Journal of the European Union | C 147/12 |
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25.5.2013

EN

Official Journal of the European Union

C 147/12

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Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 7 March 2013 — HaTeFo GmbH v Finanzamt Haldensleben

(Case C-110/13)

2013/C 147/21

Language of the case: German

Referring court

Referring court

Bundesfinanzhof

Parties to the main proceedings

Parties to the main proceedings

Applicant and appellant on a point of law: HaTeFo GmbH

Applicant and appellant on a point of law:

Defendant and respondent on a point of law: Finanzamt Haldensleben

Defendant and respondent on a point of law:

Questions referred

Questions referred

| 1. | (a) | What requirements are to be set for a finding that persons are ‘acting jointly’ within the meaning of the fourth subparagraph of Article 3(3) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (1) (‘the SME Recommendation’): Is it simply sufficient in this respect that there is any enterprise-related cooperation between the natural persons with shareholdings in both enterprises, without disputes or conflicts of interest coming to light, or rather is some recognisably coordinated course of conduct by these persons required? |
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1.

(a)

What requirements are to be set for a finding that persons are ‘acting jointly’ within the meaning of the fourth subparagraph of Article 3(3) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (1) (‘the SME Recommendation’): Is it simply sufficient in this respect that there is any enterprise-related cooperation between the natural persons with shareholdings in both enterprises, without disputes or conflicts of interest coming to light, or rather is some recognisably coordinated course of conduct by these persons required?

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| (b) | If some coordinated course of conduct is required: Does such conduct follow simply from purely de facto cooperation? |
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(b)

If some coordinated course of conduct is required: Does such conduct follow simply from purely de facto cooperation?

| 2. | Where no obligation to draw up consolidated accounts exists, is it necessary, in order to decide whether an enterprise is linked with another enterprise via a person or a group of natural persons acting jointly, to undertake, over and above an examination of the ‘relationships’ set out in the first subparagraph of Article 3(3) of the Annex to the SME Recommendation, an overall economic examination, in which aspects such as property relationships — in this case particularly the fact that shareholders belong to one family —, the share structure and the degree of economic integration — in particular also the identity of the managing directors — of the enterprises in question are to be scrutinised? |
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2.

Where no obligation to draw up consolidated accounts exists, is it necessary, in order to decide whether an enterprise is linked with another enterprise via a person or a group of natural persons acting jointly, to undertake, over and above an examination of the ‘relationships’ set out in the first subparagraph of Article 3(3) of the Annex to the SME Recommendation, an overall economic examination, in which aspects such as property relationships — in this case particularly the fact that shareholders belong to one family —, the share structure and the degree of economic integration — in particular also the identity of the managing directors — of the enterprises in question are to be scrutinised?

| 3. | In the event that, also where the SME Recommendation applies, an overall economic examination going beyond the formal examination is possible: Does this presuppose the intention, or at least the risk, of circumventing the SME definition? |
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3.

In the event that, also where the SME Recommendation applies, an overall economic examination going beyond the formal examination is possible: Does this presuppose the intention, or at least the risk, of circumventing the SME definition?

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(1)  OJ 2003 L 124, p. 36.

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