Case C-213/04: Reference for a preliminary ruling by the Oberster Gerichtshof (Supreme Court) by order of that court of 29 April 2004 in the case of Ewald Burtscher against Josef Stauderer
Date: 2004-07-24
Institutions: Court of Justice
Subjects: Vorarlberg, application of the law, interpretation of the law, land and buildings, national law, provision of documents

C 190/6

EN

Official Journal of the European Union

24.7.2004

Reference for a preliminary ruling by the Corte Suprema
di Cassazione, Sezione Quinta Civile (Supreme Court of
Cassation, Fifth Civil Chamber) by order of that court of
18 February 2004 in the case of Ministero dell'Economia e
delle Finanze (Ministry of Economic Affairs and Finance)
and Agenzia delle Entrate (Revenue Agency) against FCE
Bank plc

(Case C-210/04)

(2004/C 190/09)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of 18 February 2004 of the Corte
Suprema di Cassazione, Sezione Quinta Civile, which was
received at the Court Registry on 12 May 2004, for a preli-
minary ruling in the case of Ministero dell'Economia e delle
Finanze and Agenzia delle Entrate against FCE Bank plc on the
following questions:

1. Must Articles 2(1) and 9(1) of the Sixth Directive be inter-
preted as meaning that the branch of a company established
in another State (belonging to the European Union or other-
wise), which has the characteristics of a production unit,
may be regarded as an independent person and thus that a
legal relationship between the entities can be said to exist
with consequent liability for VAT in relation to supplies of
services effected by the parent company? Can the ‘arm's
length’ standard laid down in Article 7(2) and (3) of the
OECD model convention on double taxation and the
Convention of 21 October 1988 between Italy and the
United Kingdom of Great Britain and Northern Ireland be
used to define that relationship? Can a legal relationship be
said to exist where there is a cost-sharing agreement
concerning the supply of services to the subordinate entity?
If so, what conditions must be satisfied for such relationship
to be considered to exist? Must the notion of legal relation-
ship be dealt with under national law or Community law?

2. Can the passing on of the costs of such services to the
branch concerned be regarded as consideration for the
services supplied for the purposes of Article 2 of the Sixth
Directive, regardless of the proportion of the costs passed
on and the resulting profit to the company, and if so to
what extent?

3. If the supply of services between the parent company and
the branch are regarded in principle as being exempt from
VAT because the recipient is not independent and conse-
quently a legal relationship between the two entities cannot
be said to exist, is a national administrative practice which
considers that the supply is taxable in such a case contrary
to the right of establishment laid down in Article 43 of the
EC Treaty where the parent company is established in
another Member State of the European Union?

Reference for a preliminary ruling by the Oberster
Gerichtshof (Supreme Court) by order of that court of 29
April 2004 in the case of Ewald Burtscher against Josef
Stauderer

(Case C-213/04)

(2004/C 190/10)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Oberster Gerichtshof
(Supreme Court), Austria, of 29 April 2004 received at the
Court Registry on 19 May 2004, for a preliminary ruling in the
Josef Stauderer on the
case of Ewald Burtscher against
following question:

Should Article 56 EC be interpreted as precluding national
legislation (Vorarlberger Grundverkehrsgesetz (Vorarlberg Land
Transfer Law)) by which, in the case of a land purchase transac-
tion that does not require the authorisation of the land transfer
authority, failure by the acquirer to declare by the due date that
the land is built on, that the acquisition is not for holiday
purposes, and that he is, or should be treated as, an Austrian
national, results in the retrospective invalidity of the transac-
tion?

Action brought on 19 May 2004 by the Commission of
the European Communities against the Italian Republic

(Case C-214/04)

(2004/C 190/11)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 19 May
2004 by the Commission of the European Communities, repre-
sented by Ulrich Wölker and Antonio Aresu, acting as Agents.

The applicant claims that the Court should:

— declare that, by retaining up to the present rules which
permit the use of hydrochlorofluorocarbons in fire protec-
tion installations beyond the limits and outside the condi-
tions laid down in Article 5(3) of Regulation (EC) No
2037/2000 (1) of
the
Council of 29 June 2000 on substances that deplete the
ozone layer, the Italian Republic has failed to fulfil its obli-
gations under that provision;

the European Parliament and of

— order the Italian Republic to pay the costs.