Case C-376/03: Reference for a preliminary ruling by the Gerechtshof te 's-Hertogenbosch by judgment of that Court of 24 July 2003 in the case of D against head of the Private Individuals/Enterprises/Foreign Countries/Heerlen unit
Date: 2003-11-29
Institutions: Court of Justice
Subjects: Belgium, Netherlands, interpretation of the law, tax relief, wealth tax

C 289/12

EN

Official Journal of the European Union

29.11.2003

Reference for a preliminary ruling by the Rechtbank van
Eerste Aanleg of the Antwerp judicial district by judgment
of that Court of 13 June 2003 in the case of Jean-Claude
De Baeck against Belgian State, Ministry of Finance

(Case C-268/03)

(2003/C 289/22)

‘Split transport’ is to be understood as meaning:

The carriage of persons to or from the territory covered
by the embargo by means of a joint operation between
an undertaking established in a Member State of the
Community and an undertaking established in the terri-
tory covered by the embargo,
the former providing
carriage to the vicinity of the border of the territory
covered by the embargo and the latter carriage from there
into the territory covered by the embargo (the passengers
changing vehicle).

Reference has been made to the Court of Justice of the
European Communities by judgment of the Rechtbank van
Eerste Aanleg (First-instance court) of the Antwerp judicial
district of 13 June 2003, received at the Court Registry on
19 June 2003, for a preliminary ruling in the case of Jean-
Claude De Baeck against Belgian State, Ministry of Finance on
the following question:

2.

If the Court of
Justice finds that split transport was
permissible: Was there an obligation under Article 10 or
Article 297 EC or other provisions of Community law to
consult other Member States and/or the Commission
before taking national measures based on the unlaw-
fulness of split transport?

Do Articles 43, 46, 48, 56 and 58 EC preclude Belgian
legislation, namely Articles 67(8) and 67ter of the WIB64,
pursuant to which the surplus values realised on the occasion
of the transfer for valuable consideration, otherwise than in
the context of the exercise of a business activity, of shares, or
other proof of entitlement to holdings, in Belgian companies,
associations, establishments or institutions are liable to tax
where the transfer is to a foreign company, association,
establishment or institution, even though in the same circum-
stances those surplus values are not liable to tax where the
transfer is to a Belgian company, association, establishment or
institution?

(1) OJ L 151, p. 4.

Reference for a preliminary ruling by the Gerechtshof te
’s-Hertogenbosch by judgment of that Court of 24 July
2003 in the case of D against head of the Private
Individuals/Enterprises/Foreign Countries/Heerlen unit

(Case C-376/03)

(2003/C 289/24)

Reference for a preliminary ruling by the Oberlandesge-
richt Köln by order of that Court of 21 August 2003
in the proceedings between Aulinger and The Federal
Republic of Germany

(Case C-371/03)

(2003/C 289/23)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
Köln (Higher Regional Court, Cologne) of 21 August 2003,
received at the Court Registry on 1st September 2003, for a
preliminary ruling in the proceedings between Aulinger and
The Federal Republic of Germany on the following questions:

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Gerechtshof te ’s-
Hertogenbosch (Regional Court of Appeal, ’s-Hertogenbosch)
of 24 July 2003, received at the Court Registry on 8 September
2003, for a preliminary ruling in the case of D against head of
the Private Individuals/Enterprises/Foreign Countries/Heerlen
unit on the following questions:

1. Does Community law, and in particular Article 56 EC et
seq., preclude legislation such as that referred to in the
main proceedings, under which a domestic taxpayer is
always entitled to deduction of a tax allowance in respect
of wealth tax, whereas a foreign taxpayer has no such
entitlement in the case where the assets in question are
situated predominantly in the taxpayer’s State of residence
(in which no wealth tax is levied)?

1. Was Article 1(d) of Council Regulation No 1432/92 (1) of
1 June 1992 (the so-called ‘Embargo Regulation’) to be
interpreted as meaning that the commercial carriage of
persons to or from the territory covered by the embargo
involving so-called ‘split’
transport was permitted or
prohibited?

2.

If not, does it make a difference in this case that the
Netherlands has, under a bilateral treaty, granted to
residents of Belgium, who in all other respects are
to the tax
in comparable circumstances, entitlement
allowance (where no wealth tax is levied in Belgium
either)?

29.11.2003

EN

Official Journal of the European Union

C 289/13

3.

If either of the previous two questions is answered in the
affirmative, does Community law preclude a legal costs
scheme such as that in issue, under which, in principle,
only a limited contribution is made towards legal costs
where a citizen is successful
in proceedings brought
before the national courts for breach of Community law
by a Member State?

Action brought on 29 September 2003 by the Com-
mission of the European Communities against Ireland

(Case C-406/03)

(2003/C 289/25)

An action against Ireland was brought before the Court of
Justice of the European Communities on 29 September 2003
by the Commission of the European Communities, represented
by U. Wölker and M. Shotter, acting as agents, with an address
for service in Luxembourg.

The Applicant claims that the Court should:

— declare that, by failing to provide the reports referred to
in Articles 16(5), 16(6) and 17(1) of Regulation (EC)
No. 2037/2000 (1) on substances that deplete the ozone
layer, and by failing, in accordance with Article 17(2) of
the said Regulation, to take all precautionary measures
practicable to prevent and minimise leakages of methyl
bromide and to define the minimum qualification require-
ments for the personnel involved, Ireland has failed to
its obligations under Articles 16(5), 16(6), 17(1)
fulfil
and 17(2) of the said Regulation;

— order Ireland to pay the costs.

Pleas in law and main arguments

The Commission did not, by the required date of 31 December
2001, receive from Ireland information on the quantities of
ozone depleting substances recovered, reclaimed, recycled and
destroyed. Nor did it receive by that date any of the other
detailed information required to be reported to it by virtue of
Articles 16(5), 16(6) and 17(1) of the Regulation. In the
absence of this information, the Commission is concerned that
Ireland’s efforts to curb ozone depleting substances may fall
short of what is required by the Regulation, as the Commission
has been deprived of a means of verifying compliance. It is

also prevented from evaluating the measures taken by Ireland
as part of its overall evaluation with a view to proposing,
as appropriate, Community measures regarding minimum
qualification requirements.

With regard to Article 17(2) of the Regulation, the Commission
considers that Ireland has equally failed in its obligations. It
has not defined the minimum qualification requirements
for personnel involved in taking all precautionary measures
practicable to prevent and minimise leakages of methyl
bromide from fumigation installations and operations in which
methyl bromide is used. Nor,
for that matter, does the
Commission have any information indicating that Ireland has
taken the necessary precautionary measures.

(1) OJ L 244, 29.9.2000, p. 1.

Reference for a preliminary ruling by the Landgericht
Koblenz by order of that Court of 16 September 2003 in
the matter concerning the companies register relating to
SEVIC Systems Aktiengesellschaft

(Case C-411/03)

(2003/C 289/26)

Reference has been made to the Court of
Justice of the
European Communities by order of the Landgericht Koblenz
(Regional Court, Koblenz) of 16 September 2003, received at
the Court Registry on 2 October 2003, for a preliminary ruling
in the matter concerning the companies register relating to
SEVIC Systems Aktiengesellschaft on the following question:

Are Articles 43 and 48 EC to be interpreted as meaning that it
is contrary to freedom of establishment for companies if a
foreign European company is refused registration of
its
proposed merger with a German company in the German
register of companies under paragraphs 16 et seq. of the
Umwandlungsgesetz (Law on transformations), on the ground
that paragraph 1 (1)(1) of that law provides only for transform-
ation of legal entities established in Germany?