Case C-293/04: 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 Douanedistrict Arnhem
Date: 2004-09-11
Institutions: Court of Justice
Subjects: customs debt, customs inspection, customs regulations, interpretation of the law, movement certificate, tariff preference

11.9.2004

EN

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?

C 228/28

EN

Official Journal of the European Union

11.9.2004

4. If question 1 is answered in the negative: Can an interested
party usefully appeal against Article 220(2) of the CCC,
introduction and indent (b), as this provision read prior to
19 December 2000, in a situation in which it cannot subse-
quently be ascertained whether, at the time of issue, the
customs authorities had good grounds for issuing a EUR.1
certificate and were right to issue one?

her professional career and the calculation of her seniority,
from that moment, and on the same conditions as all the
other applicants who have obtained posts, notwithstanding
that, according to the provisions of domestic law applicable
in her case, the exercise of the rights associated with the
actual performance of work may be suspended until such
time as she actually commences work?

(1) OJ L 311 of 12.12.2000, p. 17.

Reference for a preliminary ruling by order of the Juzgado
de lo Social No 30 de Madrid of 5 July 2004 in the case
between C. Sarkatzis Herrero and Instituto Madrileño de
la Salud

Reference for a preliminary ruling by the Raad van State
by decision of that court of 13 July 2004 in the case of
M.G. Eman and O.B. Sevinger against het College van
Burgemeester en Wethouders van Den Haag

(Case C-294/04)

(2004/C 228/57)

(Case C-300/04)

(2004/C 228/58)

A reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Juzgado de lo Social No 30
de Madrid of 5 July 2004 for a preliminary ruling in the
proceedings between C. Sarkatzis Herrero and the Instituto
Madrileño de la Salud and received at the Court Registry on 12
July 2004.

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of the Raad van State (Council
of State) (Netherlands) of 13 July 2004, received at the Court
Registry on 15 July 2004, for a preliminary ruling in the case
of M.G. Eman and O.B. Sevinger against het College van Burge-
meester en Wethouders van Den Haag (Municipal Executive of
The Hague) on the following questions:

The Juzgado de lo Social No 30 de Madrid has requested the
Court of Justice to rule on the following questions:

1. Must the Community provisions on maternity leave and
equal treatment for men and women in access to work be
interpreted as meaning that a woman on maternity leave
who while in that situation obtains a post in the public
service must enjoy the same rights as the other applicants
who have been successful in the competition for access to
the public service?

2. Irrespective of what might have occurred in the case of an
employee taking up a post for the first time, if the employ-
ment relationship was in force, albeit suspended, while she
was on maternity leave, does access to the status of perma-
nent employee constitute one of the rights associated with
career advancement whose effectiveness cannot be affected
by the fact that the person concerned is on maternity leave?

1. Does Part Two of the Treaty apply to persons who possess
the nationality of a Member State and who are resident or
living in a territory belonging to the OCTs referred to in
Article 299(3) EC and having special relations with that
Member State?

2. If the answer is no: are the Member States free, in the light
of the second sentence of Article 17(1) EC, to confer their
nationality on persons who are resident or living in the
OCTs referred to in Article 299(3) EC?

3. Must Article 19(2) EC, read in conjunction with Articles
189 EC and 190(1) EC, be construed as meaning that –
apart from the not unusual exceptions in national
legal
systems relating to, inter alia, deprivation of voting rights in
connection with criminal convictions and legal incapacity –
even in the case where the persons concerned are resident
or living in the OCTs, the status of citizen of the Union
automatically confers the right to vote and to stand as a
candidate in elections to the European Parliament?

3. In application of the abovementioned provisions, and in
particular those on equal treatment for men and women in
access to employment or when employment has been
obtained, is a temporary servant who is on maternity leave
when she obtains a permanent post entitled to take up her
administrative post and assume the status of official, with
the rights inherent in such status, such as the initiation of

4. Do Articles 17 EC and 19(2) EC, read together and consid-
ered in the light of Article 3 of the Protocol, as interpreted
by the European Court of Human Rights, preclude persons
who are not citizens of the Union from having the right to
vote and to stand as candidates in elections to the European
Parliament?