Case C-290/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 28 April 2004 in the case of FKP Scorpio Konzertproduktionen GmbH against Finanzamt (Tax Office) Hamburg-Eimsbüttel
Date: 2004-09-11
Institutions: Court of Justice
Subjects: Germany, Netherlands, claim, debt, deduction at source, double taxation, interpretation of the law, tax exemption, tax on income, tax relief

C 228/26

EN

Official Journal of the European Union

11.9.2004

Pleas in law and main arguments:

The applicants contend that the order of the Court of First
Instance should be set aside on the grounds that the Court of
First Instance has committed a breach of procedure by treating
their application as an application made under Article 226 EC
when, in fact, it was an application under Article 232 EC.

Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 28 April 2004 in the case of FKP
Scorpio Konzertproduktionen GmbH against Finanzamt
(Tax Office) Hamburg-Eimsbüttel

Action brought on 5 July 2004 by the Commission of the
European Communities against the Kingdom of Sweden

(Case C-287/04)

(2004/C 228/53)

An action against the Kingdom of Sweden was brought before
the Court of Justice of the European Communities on 5 July
2004 by the Commission of the European Communities, repre-
sented by L. Ström and N. Yerrell, acting as Agents, with an
address for service in Luxembourg.

The Commission claims that the Court should:

— declare that, by failing to implement Articles 3, 6 and 8 of
Council Directive 93/104/EC (1) of 23 November 1993
concerning certain aspects of the organisation of working
time, the Kingdom of Sweden has failed to fulfil its obliga-
tions under that directive;

— order the Kingdom of Sweden to pay the costs of the

proceedings.

Pleas in law and main arguments

The Swedish legislation does not guarantee, as required under
Article 3 of the directive, a minimum daily rest period of 11
consecutive hours per 24-hour period. The fact
the
majority of workers are covered by collective agreements
which governed those questions does not affect the obligation
to implement that provision in respect of all workers.

that

As regards Article 6 of the directive,
the normal reference
period of four months laid down in Article 16(2) for the appli-
cation of Article 6 may not, under Article 17(4), be extended
to more than six months. The scope of the possible derogation
as regards the reference period is less than that provided for by
the Swedish legislation.

Article 8 of the directive has not been expressly incorporated
in the Swedish legislation.

(1) OJ L 307, 13.12.1993, p. 18.

(Case C-290/04)

(2004/C 228/54)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Federal
Finance Court) (Germany) of 28 April 2004, received at the
Court Registry on 7 July 2004, for a preliminary ruling in the
case of FKP Scorpio Konzertproduktionen GmbH against Finan-
zamt Hamburg-Eimsbüttel on the following questions:

1. Must Articles 59 and 60 of the EC Treaty be interpreted as
meaning that they are infringed if a payment debtor estab-
lished in Germany of a payment creditor established abroad
within the Community (in this case:
in the Netherlands),
who holds the nationality of a Member State, can be held
liable under the fifth sentence of Paragraph 50a(5) of the
Einkommensteuergesetz 1990 in the version in force in
1993 (Law on Income Tax, hereinafter: ‘the EStG’) because
he has failed to deduct tax at source pursuant to Paragraph
50a(4) of the EStG, whereas payments to a payment creditor
liable without limitation to income tax in Germany (that is,
a German resident) are not subject to any deduction of tax
at source pursuant to Paragraph 50a(4) of the EStG and
therefore no liability of the payment debtor for non-deduc-
tion or insufficient deduction of tax at source can arise?

2. Is the answer to Question 1 different if, at the time of
providing his service,
the payment creditor established
abroad within the Community is not a national of a
Member State?

3. If the answer to Question 1 is in the negative:

(a) Are Articles 59 and 60 of the EC Treaty to be inter-
preted as meaning that business expenses incurred by a
payment creditor established abroad within the Com-
munity and economically connected with his activities
in Germany giving rise to the payments must be taken
into account in reduction of tax by the debtor at the
time of deducting tax at source pursuant to Paragraph
50a(4) of the EStG because, as is also the case with
German residents, only the net income remaining after
deduction of business expenses is subject to income tax?

11.9.2004

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Official Journal of the European Union

C 228/27

(b) Is it sufficient for the purpose of avoiding an infringe-
ment of Articles 59 and 60 of the EC Treaty if,
in
deducting tax at source pursuant to Paragraph 50a(4) of
the EStG, only the business expenses economically
connected with the activity in Germany giving rise to
the claim for payment and which the payment creditor
established abroad within the Community has reported
to the payment debtor are taken into account in reduc-
tion of tax, and any further business expenses can be
taken into account in a subsequent refund procedure?

(c) Are Articles 59 and 60 of the EC Treaty to be inter-
preted as meaning that they are infringed if the tax
exemption to which a payment creditor established in
the Netherlands is entitled in Germany under the double
taxation convention between the Federal Republic of
Germany and the Kingdom of the Netherlands is initially
disregarded in the deduction of tax at source pursuant
to Paragraph 50a(4)
in conjunction with Paragraph
50d(1) of the EStG and only allowed in a subsequent
procedure for exemption or refund and the payment
debtor is likewise not entitled to rely on the tax exemp-
tion in proceedings
liability, whereas
German residents' tax-free income is not subject to any
deduction of
tax and therefore no liability for non-
deduction or insufficient deduction of tax at source can
arise either?

concerning

(d) Are the answers to Questions 3(a) to (c) different if the
payment creditor established abroad within the Com-
munity is not a national of a Member State at the time
of providing his service?

Is Paragraph 36(2)(3) of the Einkommensteuergesetz (in the
version in force during the relevant years), whereby only
corporation tax payable by a fully-taxable corporation or asso-
ciation amounting to three sevenths of the income within the
meaning of Paragraph 20(1)(1) or (2) of the Einkommensteuer-
gesetz is set off against income tax, compatible with Articles
56(1) EC and 58(1)(a) and (3) EC?

Reference for a preliminary ruling by the Gerechtshof te
Amsterdam by order of that court of 14 June 2004 in the
case of Beemsterboer Coldstore Services BV against Doua-
nedistrict Arnhem

(Case C-293/04)

(2004/C 228/56)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Gerechtshof te Amsterdam
(Netherlands) of 14 June 2004 received at the Court Registry
on 9 July 2004, for a preliminary ruling in the case of Beem-
sterboer Coldstore Services BV against Douanedistrict Arnhem
on the following questions:

Reference for a preliminary ruling by the Finanzgericht
Köln by order of that court of 24 June 2004 in the case of
Wienand Meilicke, Heidi Christa Weyde and Marina Stöff-
ler against Finanzamt Bonn-Innenstadt

1. Is the new text of Article 220(2)(b) of the Community
Customs Code (CCC) (1) applicable to a case in which the
customs debt was incurred and post-clearance recovery
undertaken before the provision entered into force?

(Case C-292/04)

(2004/C 228/55)

2. If question 1 is answered in the affirmative: Is a EUR.1 certi-
ficate which cannot be shown actually to be incorrect
because the origin of the goods for which the certificate was
issued could not be ascertained upon subsequent verifica-
tion, the goods being denied preferential treatment solely
for that reason, an ‘incorrect certificate’ within the meaning
of the new text of Article 220(2)(b) of the CCC and, if such
is not the case, can an interested party still usefully appeal
against this provision?

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Finanzgericht Köln
(Germany) of 24 June 2004, received at the Court Registry on
9 July 2004, for a preliminary ruling in the case of Wienand
Meilicke, Heidi Christa Weyde and Marina Stöffler against
Finanzamt Bonn-Innenstadt on the following question:

3. If question 2 is answered in the affirmative: Who bears the
burden of proving that the certificate is based on an incor-
rect account of the facts provided by the exporter or alterna-
tively who must prove that evidently the issuing authorities
were aware or should have been aware that the goods did
not satisfy the conditions laid down for entitlement to the
preferential treatment?