Case C-265/04: 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
Date: 2004-09-11
Institutions: Court of Justice
Subjects: company with share capital, interpretation of the law, share, shareholder, tax convention, tax law, tax relief

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)