Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 17 October 2003 in the case of Götz Leffler against Berlin Chemie AG, a company incorporated under German law (Case C-443)
Date: 2003-12-13
Institutions: Court of Justice
Subjects: EU act, civil law, commercial law, interpretation of the law

13.12.2003

EN

Official Journal of the European Union

C 304/17

within Directive 78/686/EEC are at a disadvantage in Austria
because they must use the professional title ‘dentist’ there,
while they are in direct competition with ‘specialists in dental,
oral and maxillo-facial surgery’. Furthermore, nationals of
other Member States staying in Austria must be able to rely on
an unambiguous title. Otherwise uncertainty is created which
could harm all patients from the Community. Since a ‘specialist
in dental, oral and maxillo-facial surgery’ is regarded under the
contested Law as a ‘specialist’ and a ‘dentist’ is regarded as a
‘doctor’, it is clear that a specialist falling within Article 19b of
Directive 78/686/EEC does not practice under the same
conditions as a ‘dentist’.

the Kingdom of the Netherlands has failed to fulfil its
obligations under Article 18(1) of Directive 79/409/EEC,
or has failed to fulfil its obligations under Article 23(1) of
Directive 92/43/EEC to comply with the directive;

— declare that Article 13(3) of the Natuurbeschermingswet
(law on the protection of nature) is contrary to Article 6(4)
of Directive 92/43/EEC;

— order the Kingdom of the Netherlands to pay the costs.

(1) OJ L 233, 24.8.1978, p. 1.
(2) OJ L 233, 24.8.1978, p. 10.

Pleas in law and main arguments

Although the Commission can in principle accept the measures
which the Netherlands has proposed in order to remedy the
failure found by the Commission in its formal notice of default,
the Commission must
time the
find that at
Netherlands is still in default since the proposed measures have
not yet been adopted or brought into force.

the present

Action brought on 15 October 2003 by the Commission
of the European Communities against the Kingdom of the
Netherlands

(1) OJ L 103 of 25 April 1979, p. 1.
(2) OJ L 206 of 22 July 1992, p. 7.

(Case C-441/03)

(2003/C 304/25)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 October 2003 by the Commission of
the European
Communities, represented by M. van Beek, as agent.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 17 October
2003 in the case of Götz Leffler against Berlin Chemie
AG, a company incorporated under German law

The applicant claims that the Court should:

— declare that by failing to bring into force the laws,
regulations and administrative provisions in order to:

(Case C-443)

(2003/C 304/26)

— fulfil the obligations of the Kingdom of the Nether-
lands under Article 4(1) and (2) of the Council
Directive of 2 April 1979 on the conservation of
wild birds (79/409/EEC) (1), or in any event by failing
to inform the Commission of those provisions, and

— fulfil the obligations of the Kingdom of the Nether-
in conjunction with
lands under Article 6(1),
Article 2(1) and Article 1(a),
(e) and (i), and
Articles 6(2), (3) and (4), 7, 11, 14(1) and (2), and
15 of Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna
and flora, (2) or in any event by failing to inform the
Commission thereof,

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 17 Octo-
ber 2003, received at the Court Registry on 20 October 2003,
for a preliminary ruling in the case of Götz Leffler against
Berlin Chemie AG, a company incorporated under German
law on the following questions:

1. Must Article 8(1) of the Regulation (1) be construed as
meaning that, in the event of refusal by an addressee to
accept a document on the ground of failure to comply
with the language requirement laid down in Article 8(1),
it is possible for the sender to rectify that failure?

C 304/18

EN

Official Journal of the European Union

13.12.2003

2.

If the answer to Question 1 is in the negative: must
refusal to accept the document be deemed to have the
effect in law of rendering the service inoperative in its
entirety?

3.

If the answer to Question 1 is in the affirmative:

(a) Within what period of time and in what manner
must the translation be brought to the attention of
the addressee? Must notification of the translation
satisfy the conditions which the Regulation imposes
on the service of documents or can the manner of
dispatch be freely determined?

(b) Does national procedural law apply in respect of the

possibility of rectifying the failure?

(1) Council Regulation (EC) No 1348/2000 of 29 May 2000 on the
service in the Member States of judicial and extrajudicial docu-
ments in civil or commercial matters (OJ 2000 L 160, p. 37).

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 16 July 2003, in the case of Marks &
Spencer plc against David Halsey (HM Inspector of Taxes)

(Case C-446/03)

(2003/C 304/27)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, dated 16 July
2003, which was received at the Court Registry on 22 October
2003, for a preliminary ruling in the case of Marks & Spencer
plc and David Halsey (HM Inspector of Taxes) on the following
questions:

1.

In circumstances where:

— provisions of a Member State, such as the UK
provisions on group relief, prevent a parent com-
pany which is resident for tax purposes in that State
from reducing its taxable profits in that State by
setting off losses incurred in other Member States
by subsidiary companies which are resident for tax
purposes in those States, where such set off would
be possible if the losses were incurred by subsidiary
companies resident
the parent
company;

in the State of

— the Member State of the parent company:

— subjects a company resident within its territory
to corporation tax on its total profits, including
the profits of branches in other Member States,
with arrangements for the availability of double
taxation relief
for those taxes incurred in
another Member State and under which branch
losses are taken account of in those taxable
profits;

— does not subject the undistributed profits of
subsidiaries resident in other Member States to
corporation tax;

— subjects the parent company to corporation
tax on any distributions to it by way of dividend
by the subsidiaries resident in other Member
States while not subjecting the parent company
to corporation tax on distributions by way of
dividend by subsidiary companies resident in
the State of the parent;

— grants double taxation relief

to the parent
company by way of a credit in respect of
withholding tax on dividends and foreign taxes
paid on the profits in respect of which divi-
dends are paid by subsidiary companies resi-
dent in other Member States;

is there a restriction under Article 43 EC, in conjunction
with Article 48 EC? If so, is it justified under Community
law?

2.

(a) What difference, if any, does it make to the answer
to Question 1 that, depending on the law of the
Member State of the subsidiary, it is or may be
possible in certain circumstances to obtain relief for
some or all of the losses incurred by the subsidiary
against taxable profits in the State of the subsidiary?

(b)

If it does make a difference, what significance, if any,
is to be attached to the fact that:

— a subsidiary resident in another Member State
has now ceased trading and, although there is
provision for loss relief subject
to certain
conditions in that State, there is no evidence
that
in the circumstances such relief was
obtained;

— a subsidiary resident in another Member State
has been sold to a third party and, although
there is provision under the law of that State
for the losses to be used under certain con-
ditions by a third party purchaser, it is uncertain
whether they were so used in the circumstances
of the case;