Case C-292/04: 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 Stöffler against Finanzamt Bonn-Innenstadt
Date: 2004-09-11
Institutions: Court of Justice
Subjects: corporation tax, interpretation of the law, tax on income, tax relief

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?