Case C-7/02: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 21 December 2001 in the case of Holin Groep B.V. c.s. against Staatssecretaris van Financiën
Date: 2002-05-04
Institutions: Court of Justice
Subjects: VAT, approximation of laws, interpretation of the law, tax relief

4.5.2002

EN

Official Journal of the European Communities

C 109/21

8. Where the numbers of budgetary and established posts
remain unchanged, can additional personnel costs
incurred in the recruitment of additional persons by an
expansion of part-time employment, in contrast to the
hitherto predominant full-time employment, justify the
necessity of imposing these costs on part-time employees
by way of a disproportionate reduction in their rate of
pension, as occurred under the second and third clauses
of the first sentence of Paragraph 14(1) of the BeamtenVG
in the version thereof applicable until 31 December
1991?

9.

Is it reasonable for such costs to be taken into account as
a matter of necessity (Q. 8) if the burden of additional
staff-administration costs is imposed solely on earlier
part-time employees, hence predominantly women, even
though the expansion of part-time employment oppor-
tunities at the time of the legislative amendment in that
regard as a matter of priority pursued the objective of
reducing general unemployment by the partial absorption
of surplus male and female applicants to the public
service?

10. Does the Protocol concerning Article 119 of the EC
Treaty as part of the Treaty on European Union of 1992
(OJ 1992 C 191, p. 68) absolutely preclude the detailed
rules for the inclusion of periods of employment prior to
17 May 1990 from being examined under Article 141(1)
and (2) EC (ex Article 119 of the EC Treaty)? Does the
prohibition on such examination also apply where after
17 May 1990 the provisions relevant to the inclusion of
periods of employment completed before the relevant
date of 17 May 1990 have been amended but those
amendments effect only a partial adjustment in line with
the requirements of Article 119 of the EC Treaty and for
certain categories effect no such favourable adjustment?

11.

In determining adherence to the relevant date of 17 May
1990 in the enactment of laws is the date of publication
in the official gazette decisive, or is the matter determined
by the conclusion of deliberations in the legislative bodies
and indeed even if the law requires the assent of the
Federal Government?

(1) OJ 1986 L 225, p. 40.
(2) OJ 1979 L 6, p. 24.
(3) OJ 1997 L 14, p. 6.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 21 December
2001 in the case of Holin Groep B.V. c.s. against Staatsse-
cretaris van Financiën

(Case C-7/02)

(2002/C 109/34)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
der Nederlanden (Supreme Court of
the Netherlands) of
21 December 2001, received at the Court Registry on 11 Janu-
ary 2002, for a preliminary ruling in the case of Holin Groep
B.V. c.s. against Staatssecretaris van Financiën (State Secretary
for Finance) on the following question:

1. Do Articles 5(7)(a) and 17 of the Sixth Directive (1). or the
European law principles of the protection of legitimate
expectations and of legal certainty preclude — in a case
not involving fraud or abuse or any question of a change
in planned use, as mentioned in paragraphs 50 and 51 of
the judgment of the Court of Justice in Schloßstraße (2)
— the charging of tax on the basis of the abovementioned
Article 5(7)(a) when a taxable person has deducted VAT
which he has paid for goods delivered, or services
provided, to him with a view to the planned leasing,
subject to VAT, of a particular immovable property, on
the simple ground that, as a result of a legislative
amendment, the taxable person no longer has the right
to waive the exemption for that lease?

2. Would an affirmative response to the first question also
apply to a right to deduct arising in the period between
notification of the legislative amendment mentioned in
Question 1 and its entry into force? In other words, in
the event of an affirmative response to Question 1, can
tax still be charged, on the basis of Article 5(7)(a), on the
elements of the cost price referred to in Article 11 A(1)(b)
of the Sixth Directive which were incurred after that
notification date?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977, L 145, p. 1).
(2) Judgement of 8.6.2000 in case C-396/98.