Case C-264/04: Reference for a preliminary ruling by the Amtsgericht Breisach (Germany) by decision of that court of 7 June 2004 in the case of Badischer Winzerkeller eG against Land Baden-Württemberg
Date: 2004-09-11
Institutions: Court of Justice
Subjects: aid for restructuring, capital movement, company law, company with share capital, indirect tax, interpretation of the law, share capital

11.9.2004

EN

Official Journal of the European Union

C 228/21

Pleas in law and main arguments:

Workers who are nationals of a non-Member State and are to
be posted to Germany in order to provide a service require a
‘work visa’, which is only issued if the worker was employed by
the undertaking making the posting for a minimum of one
year prior to the posting.

without any objective reason, with workers aged 52 and
over and which thus runs counter to the principle of justifi-
cation on objective grounds?

(d) If one of those three questions is answered in the affirma-

tive:

In the view of the Commission, both (1) the practice based on
an internal administrative instruction, of requiring a work
permit in advance and (2) the issuing of such a permit only
an
‘Stammarbeitnehmer’
unjustified and disproportionate restriction on the freedom to
provide services.

(regular/core workers)

constitute

Must the national court refuse to apply the provision of
national law which conflicts with Community law and, in
that case, does the general principle laid down in national
law apply, under which fixed terms of employment are
they are justified on an objective
permissible only if
ground?

(1) OJ 1999 L 175, p. 43.
(2) OJ 2000 L 303, p. 16.

Reference for a preliminary ruling by the Arbeitsgericht
Regensburg (Germany) by order of that court of 16 June
2004 in the case of Gerhard Schmidt against Sennebogen
Maschinenfabrik GmbH

Reference for a preliminary ruling by the Amtsgericht
Breisach (Germany) by decision of that court of 7 June
2004 in the case of Badischer Winzerkeller eG against
Land Baden-Württemberg

(Case C-261/04)

(2004/C 228/41)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Arbeitsgericht Regensburg
(Germany) of 16 June 2004, which was received at the Court
Registry on 21 June 2004, for a preliminary ruling in the case
of Gerhard Schmidt against Sennebogen Maschinenfabrik
GmbH.

The Arbeitsgericht Regensburg asks the Court of Justice to give
a preliminary ruling on the following questions:

(a) Is Clause 8(3) of the Framework Agreement (Council Direc-
tive 1999/70/EC of 28 June 1999 concerning the frame-
work agreement on fixed-term work concluded by ETUC,
UNICE and CEEP) (1) to be interpreted as prohibiting, in the
course of the implementation of that agreement in national
law, any reduced protection as a result of a reduction in the
age limit from 60 to 58?

(b) Is Clause 5(1) of the Framework Agreement (Council Direc-
tive 1999/70/EC of 28 June 1999 concerning the frame-
work agreement on fixed-term work concluded by ETUC,
UNICE and CEEP) to be interpreted as precluding a provi-
sion of national law which — like the provision at issue in
this case — does not contain any of the three restrictions
set out in paragraph 1 of that clause?

(c) Is Article 6 of Council Directive 2000/78/EC of 27
November 2000 (2) establishing a general framework for
equal treatment in employment and occupation to be inter-
preted as precluding a provision of national
law under
which — as under the provision at issue in this case —
concluded,
fixed-term employment

contracts may be

(Case C-264/04)

(2004/C 228/42)

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of the Amtsgericht Breisach
(Germany), of 7 June 2004, which was received at the Court
Registry on 22 June 2004, for a preliminary ruling in the case
of Badischer Winzerkeller eG against Land Baden-Württem-
berg.

The Amtsgericht Breisach (Germany) asks the Court of Justice
to give a preliminary ruling on the following question:

1. Must Council Directive 69/335/EEC (1) of 17 July 1969
concerning indirect taxes on the raising of capital, in the
version resulting from Council Directive 73/79/EEC (2) of 9
April 1973 varying the field of application of the reduced
rate of capital duty provided for in respect of certain
company reconstruction operations by Article 7(1)(b) of the
Directive concerning indirect taxes on the raising of capital,
Council Directive 73/80/EEC (3) of 9 April 1973 fixing
common
duty, Council Directive
74/553/EEC (4) of 7 November 1974 amending Article 5(2)
of Directive No 69/335/EEC concerning direct taxes on the
raising of capital, and Council Directive 85/303/EEC (5) of
10 June 1985 amending Directive 69/335/EEC concerning
indirect taxes on the raising of capital (hereinafter referred
to as ‘the directive’) be interpreted as meaning that all opera-
tions referred to in Article 10(c) of the directive fall within
the prohibition thereby enacted, irrespective of the condi-
tions in Article 4?

capital

rates

of

C 228/22

EN

Official Journal of the European Union

11.9.2004

2. When applying the directive, should no distinction be made
between fees for the provision of services by the State and
taxes, with the result that ‘fees’ under the Kostenordnung
can be assimilated to taxes on the transfer of ownership?

3. Should the Court answer the second question in the affirma-
tive, should the last sentence of Article 12(2) of the directive
be interpreted as meaning that an exception arises from the
fact that Article 60 of the Kostenordnung (Gesetz über die
Kosten in Angelegenheiten der freiwilligen Gerichtsbarkeit,
in the version of 26 July 1957, Bundesgesetzblatt I, p. 960),
for example, makes no provision for a charge for rectifying
the land register in succession cases where the application
for registration is made within two years following the
death?

company has its registered office and the Member State in
which the shareholder is resident provides, with reference to
the commentaries on the OECD Model Tax Convention,
that there is to be a lower rate of taxation than that applied
to a share repurchase payment made to a shareholder in the
first Member State and a shareholder in the second Member
State and also permits a deduction corresponding to the
nominal value of the repurchased shares, do the articles
mentioned in the previous question permit, in those circum-
stances, a Member State to apply a rule such as that set out
above?

3. Do Articles 43 EC and 48 EC permit a Member State to

apply a rule such as that set out above?

(1) OJ L 249, p. 25.
(2) OJ L 103, p. 13.
(3) OJ L 103, p. 15.
(4) OJ L 303, p. 9.
(5) OJ L 156, p. 23.

Reference for a preliminary ruling by the Kammarrätten i
Sundsvall by order of that court of 17 June 2004 in the
case of Margaretha Bouanich against the Skatteverket

(Case C-265/04)

(2004/C 228/43)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Kammarrätten i Sundsvall
(Sundsvall Administrative Court of Appeal)
(Sweden) of 17
June 2004, received at the Court Registry on 24 June 2004, for
a preliminary ruling in the case of Margaretha Bouanich against
the Skatteverket
(Local Tax Board), Gävle office on the
following questions:

1. Do Articles 56 EC and 58 EC permit a Member State to tax
a payment in respect of a share repurchase, paid out by a
limited company in the Member State, in the same way as a
dividend, without there being a right to deduct the cost of
acquisition of the repurchased share, if the payment is made
to a shareholder who is not domiciled or permanently resi-
dent
in the Member State, whereas a share repurchase
payment made by such a limited company to a shareholder
domiciled or permanently resident in the Member State is
instead taxed as if it were a capital gain, with a right to
deduct the cost of acquisition of the repurchased share?

2. If the answer to Question 1 is no: When the double taxation
agreement between the Member State in which the limited

References for preliminary rulings by the Tribunal des
affaires de sécurité sociale de Saint-Etienne by judgments
of that Tribunal of 5 April 2004 in the following cases:
SAS Nazairdis against Caisse Nationale de l'Organisation
Autonome d'Assurance Vieillesse des Travailleurs Non-
Salariés des Professions Industrielles et Commerciales —
Caisse ORGANIC, JACELI SA against Caisse Nationale de
l'Organisation Autonome d'Assurance Vieillesse des
Travailleurs Non-Salariés des Professions Industrielles et
Commerciales — Caisse ORGANIC, KOMOGO SA against
Caisse Nationale de l'Organisation Autonome d'Assurance
Vieillesse des Travailleurs Non-Salariés des Professions
Industrielles et Commerciales — Caisse ORGANIC, Tout
pour la maison SARL against Caisse Nationale de l'Organi-
sation Autonome d'Assurance Vieillesse des Travailleurs
Non-Salariés des Professions Industrielles et Commerciales
— Caisse ORGANIC, SAS Distribution Casino France
against Caisse Nationale de l'Organisation Autonome d'As-
surance Vieillesse des Travailleurs Non-Salariés des Profes-
sions Industrielles et Commerciales — Caisse ORGANIC

(Cases C-266/04, C-267/04, C-268/04, C-269/04, C-270/04)

(2004/C 228/44)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgments of the Tribunal des affaires de
sécurité sociale de Saint-Etienne (Saint-Etienne Social Security
Tribunal)
the Court
(France) of 5 April 2004, received at
Registry on 24 June 2004 and 25 June 2004 (Case C-270/04),
for a preliminary ruling in the following cases:

— SAS Nazairdis against Caisse Nationale de l'Organisation
Autonome d'Assurance Vieillesse des Travailleurs Non-
Salariés des Professions Industrielles et Commerciales —
Caisse ORGANIC (Case C-266/04)