Case C-281/04 P: Appeal brought on 25 June 2004 by Michael Leighton, Graham French and John Neiger against the order made on 3 May 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-24/04 between Michael Leighton, Graham French and John Neiger and the Council of the European Union and the Commission of the European Communities.
Date: 2004-09-11
Institutions: Court of Justice
Subjects: Council of the European Union, European Commission, European treaties, General Court (EU), appeal, infringement of EU law, judicial proceedings, opinion (EU)

11.9.2004

EN

Official Journal of the European Union

C 228/25

Reference for a preliminary ruling by the Retten i
Hørsholm (Denmark) by order of that court of 4 June
2004 in the case of Anklagemyndigheden against Steffen
Ryborg

hand cars, liable to VAT on the sale of those capital items,
even in the case where the items were purchased from
taxable persons who did not declare tax on the price of the
there was no possibility of
items, with the result
deducting VAT at the time of acquisition?

that

(Case C-279/04)

(2004/C 228/50)

Reference has been made to the Court of Justice of the Euro-
pean Communities by the Retten i Hørsholm (Denmark), by
order of 4 June 2004, which was received at the Court Registry
on 28 June 2004, for a preliminary ruling in the case of Ankla-
gemyndigheden against Steffen Ryborg.

The Retten i Hørsholm asks the Court of Justice to give a preli-
minary ruling on the following questions:

1.a. Are Article 39 EC, Article 49 EC and Article 10 EC to be
interpreted as precluding a Member State from requiring
registration of a motor vehicle when the vehicle belongs
to an employer established in a neighbouring Member
State and is used by an employee who is resident in the
first-mentioned Member State for work purposes and
during his free time in both Member States?

1.b If

in the assessment for question 1.a weight

is to be
accorded to whether any private use of the vehicle is ancil-
lary to business use, which criteria should be used by the
national court in determining whether the non-business
use of the vehicle is ancillary to the business use, when it
can be assumed that
the vehicle is used for business
purposes, see Case C-127/86 Yves Ledoux [1988] ECR
3741, paragraph 18?

2. Must Article 26a.A(e) of

the Sixth VAT Directive be
construed as meaning that the term ‘taxable dealer’ covers
only persons whose principal activity consists
in the
purchase and sale of second-hand goods in cases where the
second-hand goods in question are acquired with the sole or
principal purpose of obtaining a financial profit on their
resale, or does that term also cover persons who normally
dispose of those goods by sale at the end of a leasing period
as a subsidiary link in the overall economic leasing activity
under the circumstances outlined above?

(1) Council Directive 77/388/EEC of 17 May 1977 on the harmonisa-
tion of the laws of the Member States relating to turnover taxes –
Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1, corrigendum at OJ 1977 L 149, p. 26).

Appeal brought on 25 June 2004 by Michael Leighton,
Graham French and John Neiger against the order made
on 3 May 2004 by the Fifth Chamber of the Court of First
Instance of the European Communities in case T-24/04
between Michael Leighton, Graham French and John
Neiger and the Council of the European Union and the
Commission of the European Communities.

(Case C-281/04 P)

(2004/C 228/52)

Reference for a preliminary ruling by the Vestre Landsret
by order of that court of 25 June 2004 in the case of Jyske
Finans against Skatteministeriet

(Case C-280/04)

(2004/C 228/51)

Instance of

An appeal against the order made on 3 May 2004 by the Fifth
the Court of First
Chamber of
the European
in case T-24/04 between Michael Leighton,
Communities
Graham French and John Neiger and the Council of the Euro-
pean Union and the Commission of the European Commu-
nities, was brought before the Court of Justice of the European
Communities on 25 June 2004 by Michael Leighton, Graham
French and John Neiger, represented by J.S. Barnett, Solicitor-
Advocate.

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Vestre Landsret (Western
Regional Court)
(Denmark) of 25 June 2004, which was
received at the Court Registry on 29 June 2004, for a preli-
minary ruling in the case of Jyske Finans against Skatteminis-
teriet (Finance Ministry) on the following questions:

1. Must Article 13.B(c), in conjunction with Articles 2(1) and
11.A(1)(a), of the Sixth VAT Directive 77/388/EEC (1) be
construed as precluding a Member State from maintaining a
legal situation under its law on value added tax pursuant to
which a taxable person who has introduced capital items to
a significant extent into his business assets is, in contrast to
second-hand car dealers and other traders who sell second-

The Appellants claims that the Court should:

— set aside the order

— grant the relief sought by the Appellants in the form of the

draft order annexed to the Application; alternatively

— remit the case to the Court of First Instance; and in any

event

— order the Defendants to pay the Appellants' costs.

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?