Case C-346/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 May 2004 in the case of Robert Hans Conijn against Finanzamt Hamburg-Mitte-Altstadt
Date: 2004-10-09
Institutions: Court of Justice
Subjects: EU national, Germany, basis of tax assessment, interpretation of the law, tax relief, taxable income

9.10.2004

EN

Official Journal of the European Union

C 251/9

Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 26 May 2004 in the case of
Robert Hans Conijn against Finanzamt Hamburg-Mitte-
Altstadt

Zelarain Errasti. Payment of default interest on those sums
is sought at the rate of 4.5 % per annum from the date of
the Court's judgment until payment is made. An order is
sought that the Council bear its own costs and those of the
applicants.

(Case C-346/04)

(2004/C 251/16)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Germany)
of 26 May 2004, received at the Court Registry on 12 August
2004, for a preliminary ruling in the case of Robert Hans
Conijn against Finanzamt Hamburg-Mitte-Altstadt on the
following question:

Is a situation whereby a national of another Member State with
restricted tax liability in Germany, unlike a person with unrest-
ricted tax liability, may not deduct from his total income as
special expenditure the costs incurred by him in obtaining tax
advice contrary to Article 52 of the Treaty establishing the
European Community?

Appeal brought on 17 August 2004 by Pro Amnistía, J.M.
Olano Olano, J. Zelarain Errasti against the order delivered
on 7 June 2004 by the Second Chamber of the Court of
First Instance of the European Communities in Case T-
333/02 between Gestoras Pro Amnistía, J.M. Olano Olano,
J. Zelarain Errasti and the Council of the European Union,
supported by the Kingdom of Spain and the United
Kingdom

(Case C-354/04 P)

(2004/C 251/17)

in Case T-333/02 between Gestoras

An appeal against the order made on 7 June 2004 by the
Second Chamber of the Court of First Instance of the European
Communities
Pro
Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council
of the European Union, supported by the Kingdom of Spain
and the United Kingdom, was brought before the Court of
Justice of the European Communities on 17 August 2004 by
Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti, represented
by D. Rouget, avocat.

The appellant claims that the Court should:

1. hold that the present appeal is well-founded and annul the

contested order;

2. give, by virtue of Article 61 of the Protocol on the Statute
of the Court of Justice, a final ruling on the present case and
uphold the arguments put forward by the applicants at first
instance, namely, to reiterate, ordering the defendant to pay
compensation amounting to EUR 1 000 000 to the associa-
tion Gestoras Pro Amnistía and EUR 100 000 to each of
the other two applicants, Juan Mari Olano Olano and Julen

Pleas and main arguments

The Community Courts have jurisdiction to hear the actions
for damages in respect of the loss caused by the inclusion of
the applicant association on the list of persons, groups or enti-
ties drawn up under
the legislation on the fight against
terrorism.

In essence, at

The legal basis for that jurisdiction is found in the present case
in the Council Declaration of 18 December 2001, the eighth
recital to Council Decision 2003/48/JHA (1) and Article 6 EU
viewed together.
the time of adoption of
Common Position 2001/931/CFSP, (2) the Council declared on
18 December 2001 that ‘any error as to persons, groups or
entities named gives the injured party the right to seek legal
compensation’. Furthermore, the right to an effective remedy
against injurious acts of the institutions is one of the founda-
tions of the European Union and the provisions which enshrine
that right are therefore to be interpreted widely in order to
fulfil the requirements arising out of Articles 1, 6(1) and 13 of
the ECHR which must be applicable in the present case.

With regard to the existence of a loss, the inclusion of the
applicant association in the disputed list causes particularly
serious harm to its reputation and to its freedom of expression
in that it implies that the association is accused of being a
terrorist organisation. In the same way, its inclusion in the list
harms the reputation, the freedom of expression, the freedom
of association and the private lives of the other two applicants,
who are spokesmen for the association. With regard to the
causal
link between the Council's behaviour and the loss
suffered, the repercussions on their reputation are an inescap-
able and immediate consequence of the inclusion in the list.

Finally, the Council has fraudulently exploited the division into
three pillars of European Union activities. In its choice of legal
basis, the Council was guided by considerations of expediency
such as the wish to avoid the scrutiny of the Parliament, the
Ombudsman and the Court of Justice and therefore to deprive
the persons concerned of the right to an effective remedy and
in particular of the right to an action seeking compensation for
the harm suffered. That behaviour constitutes an abuse of
process.

(1) Council Decision 2003/48/JHA of 19 December 2002 on the imple-
mentation of specific measures for police and judicial cooperation
to combat terrorism in accordance with Article 4 of Common Posi-
tion 2001/931/CFSP (OJ L 16, 22.1.2003, p. 68).

(2) Council Common Position of 27 December 2001 on the application
of specific measures to combat terrorism (OJ L 344, 28.12.2001,
p. 93).