Case C-446/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 13 October 2004, in the case of Test Claimants in the FII Group Litigation against Commissioners of Inland Revenue
Date: 2005-01-08
Institutions: Court of Justice
Subjects: corporation tax, interpretation of the law, redemption, tax exemption, tax on profits of self-employment

C 6/26

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Official Journal of the European Union

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Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by order of that court of 15 October 2004 in
the case of H. A. Solleveld against Inspecteur van de Belas-
tingdienst — ondernemingen Amersfoort

(Case C-443/04)

(2005/C 6/49)

Must Article 13(A)(1)(c) of the Sixth Directive (1) be construed
as meaning that psychotherapeutic treatments provided by a
person carrying on a profession who satisfies the legal require-
ments for registration listed in paragraph 3.1, and is registered
in the Register of Psychotherapists, are exempt from VAT, even
where those interventions cannot be subsumed within the exer-
cise, by the person carrying out
those interventions, of a
medical or paramedical profession as defined by the Member
State concerned?

(Language of the case: Dutch)

(1) OJ L 145 of 13.6.1977, p. 1.

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Hoge Raad der Nederlanden
(Netherlands Supreme Court), Third Chamber (Netherlands) of
15 October 2004 received at the Court Registry on 20 October
2004, for a preliminary ruling in the case of H. A. Solleveld
against Inspecteur van de Belastingdienst — ondernemingen
Amersfoort on the following question:

Must Article 13(A)(1)(c) of the Sixth Directive (1) be construed
as meaning that exemption from VAT is conferred in respect of
interventions comprising the establishment of a diagnosis, the
provision of therapeutic advice and possible provision of treat-
ment, in the framework of the diagnostic treatment described
in paragraphs 3.1.2 and 3.1.3 above, even where those inter-
ventions cannot be subsumed within the exercise, by the
person carrying out those interventions, of a medical or para-
medical profession as defined by the Member State concerned?

(1) OJ L 145 of 16.6.1977, p. 1.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by order of that court of 15 October 2004 in
the case of
J.E. van den Hout-van Ejnsbergen against
Inspecteur van de Belastingdienst — ondernemingen
Leiden

(Case C-444/04)

(2005/C 6/50)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Hoge Raad der Nederlanden
(Netherlands Supreme Court), Third Chamber (Netherlands) of
15 October 2004 received at the Court Registry on 20 October
2004, for a preliminary ruling in the case of J.E. van den Hout-
van Ejnsbergen against Inspecteur van de Belastingdienst —
ondernemingen Leiden on the following question:

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order of
that court dated 13 October 2004, in the case of Test Clai-
mants in the FII Group Litigation against Commissioners
of Inland Revenue

(Case C-446/04)

(2005/C 6/51)

(Language of procedure: English)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
Justice
(England & Wales), Chancery Division, dated 13 October 2004,
which was received at the Court Registry on 22 October 2004,
for a preliminary ruling in the case of Test Claimants in the FII
Group Litigation and Commissioners of Inland Revenue on the
following questions:

the High Court of

1. Is it contrary to Article 43 or 56 EC for a Member State to
keep in force and apply measures which exempt
from
corporation tax dividends received by a company resident in
that Member State (‘the resident company’) from other resi-
dent companies and which subject dividends received by the
resident
in other
Member States (‘non-resident companies’) to corporation tax
(after giving double taxation relief for any withholding tax
payable on the dividend and, under certain conditions, for
the underlying tax paid by the non-resident companies on
their profits in their country of residence)?

company from companies

resident

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Official Journal of the European Union

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2. Where a Member State has a system which in certain
circumstances imposes advance corporation tax (‘ACT’) on
the payment of dividends by a resident company to its
shareholders and grants a tax credit to shareholders resident
in that Member State in respect of those dividends,
is it
contrary to Article 43 or 56 EC or Article 4(1) or 6 of
Council Directive 90/435/EEC (1) for the Member State to
keep in force and apply measures which provide for the
resident company to pay dividends to its shareholders
without being liable to pay ACT to the extent that it has
received dividends from companies resident in that Member
State (either directly or indirectly through other companies
resident in that Member State) and do not provide for the
resident company to pay dividends to its shareholders
without being liable to pay ACT to the extent that it has
received dividends from non-resident companies?

3. Is it contrary to the provisions of EC law referred to in
Question 2 above for the Member State to keep in force and
apply measures which provide for the ACT liability to be set
against the liability of the dividend-paying company, and
that of other companies in the group resident
in that
Member State, to corporation tax in that Member State
upon their profits:

a. but which do not provide for any form of set off of the
(such as the
ACT liability or some equivalent relief
refund of ACT) in respect of profits earned, whether in
that State or in other Member States, by companies in
the group which are not residents in that Member State;
and/or

b. which provide that any double tax relief which a
company resident in that Member State enjoys reduces
the liability to corporation tax against which the ACT
liability can be set?

4. Where the Member State has measures which in certain
circumstances provide for resident companies,
if they so
elect, to recover the ACT paid on distributions to their
shareholders to the extent that distributions are received by
from non resident companies
the resident companies
(including for this purpose companies resident
in third
countries), is it contrary to Article 43 or 56 EC or Article
4(1) or 6 of Council Directive 90/435/EEC for
those
measures:

a. to oblige the resident companies to pay ACT and to

reclaim it subsequently; and

b. not

to provide for the shareholders of

the resident
companies to receive a tax credit which they would have
received on a dividend from a resident company which

had not
companies?

itself received dividends from non- resident

5. Where, prior

to 31 December 1993, a Member State
adopted the measures outlined in Questions 1 and 2, and
after that date it adopted the further measures outlined in
Question 4, and if the latter measures constitute a restriction
prohibited by Article 56 of the EC Treaty, is that restriction
to be taken to be a new restriction not already existing on
the 31 December 1993?

6. In the event of any of the measures set out in Questions 1
to 5 being in breach of any of the Community provisions
referred to herein, then in circumstances where the resident
company or other companies in the same group of compa-
nies make the following claims in respect of the relevant
breaches:

(i) a claim for the repayment of corporation tax unlaw-
fully levied in the circumstances to which Question 1
relates;

(ii) a claim for the reinstatement (or compensation for the
loss) of reliefs applied against
the corporation tax
unlawfully levied in the circumstances to which Ques-
tion 1 relates;

(iii) a claim for repayment of (or compensation for) ACT
which could not be set off against
the company's
corporation tax liability or otherwise relieved and
which would not have been paid (or would have been
relieved) but for the breach;

(iv) a claim, where the ACT has been set off against
corporation tax, for loss of use of money between the
date of payment of the ACT and such set-off;

(v) a claim for repayment of corporation tax paid by the
company or by another group company where any of
those companies incurred a corporation tax liability by
disclaiming other reliefs in order to allow its ACT
liability to be set off against its corporation tax liability
(the limits imposed on set-off of ACT resulting in a
residual corporation tax liability);

(vi) a claim for loss of use of money due to corporation
tax having been paid earlier than would otherwise
have been the case or for reliefs subsequently lost in
the circumstances set out in (v) above;

(vii) a claim by the resident company for payment of (or
compensation for) surplus ACT which that company
has surrendered to another company in the group and
which remained unrelieved when that other company
was sold, demerged or went into liquidation;

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Official Journal of the European Union

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(viii) a claim, where ACT has been paid but subsequently
reclaimed under the provisions described in Question
4,
for loss of use of money between the date of
payment of the ACT and the date on which it was
reclaimed;

(ix) a claim for compensation where the resident company
elected to reclaim the ACT under the arrangements
described in Question 4 and compensated its share-
holders for the inability to receive a tax credit by
increasing the amount of the dividend,

in respect of each of those claims set out above, is it to be
regarded as:

a claim for repayment of sums unduly levied which arise as
a consequence of, and adjunct to, the breach of the above-
mentioned Community provisions; or

a claim for compensation or damages such that the condi-
tions set out in Joined Cases C-46/93 and C-48/93 Brasserie
du Pecheur and Factortame must be satisfied; or

a claim for payment of an amount representing a benefit
unduly denied?

7. In the event that the answer to any part of Question 6 is
that the claim is a claim for payment of an amount repre-
senting a benefit unduly denied:

(a) is such a claim a consequence of, and an adjunct to, the
right conferred by the abovementioned Community
provisions; or

(b) must the conditions for recovery laid down in Joined
Cases C-46/93 and C-48/93 Brasserie du Pecheur and
Factortame be satisfied; or

(c) must some other conditions be met?

8. Does it make any difference to the answers to Questions 6
or 7 whether as a matter of domestic law the claims referred
to in Question 6 are brought as restitutionary claims or are
brought or have to be brought as claims for damages?

9. What guidance,

if any, does the Court of Justice think it
appropriate to provide in the present case as to which
circumstances the national court ought to take into consid-
eration when it comes to determine whether there is a suffi-
ciently serious breach within the meaning of the judgment
in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur
and Factortame, in particular as to whether, given the state
of the case law of the Court of Justice on the interpretation
of the relevant Community provisions, the breach was excu-
sable or as to whether in any particular case there is a suffi-

cient causal link to constitute a ‘direct causal link’ within the
meaning of that judgment?

(1) Council Directive 90/435/EEC of 23 July 1990 on the common
system of taxation applicable in the case of parent companies and
subsidiaries of different Member States (OJ L 225, 20.8.1990, p. 6).

Reference for a preliminary ruling by the Verwaltungsger-
icht, Frankfurt am Main by order of that court of 11
October 2004 in the case of Fidium Finanz AG against
Bundesanstalt für Finanzdienstleistungsaufsicht

(Case C-452/04)

(2005/C 6/52)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Verwaltungsgericht (Admin-
istrative Court), Frankfurt am Main (Germany) of 11 October
2004 received at the Court Registry on 27 October 2004, for a
preliminary ruling in the case of Fidium Finanz AG against
Bundesanstalt
the
für
following questions:

Finanzdienstleistungsaufsicht

on

1. Can an undertaking having its registered office in a country
outside the European Union, in this case Switzerland, rely
on the freedom of movement of capital under Article 56 EC
in respect of the commercial grant of credit to residents of a
Member State of
in this case the
the European Union,
Federal Republic of Germany, as against that Member State
and the measures taken by its authorities or courts, or are
the preparation, provision and performance of such finan-
cial services covered solely by the freedom to provide
services under Article 49 et seq. EC?

2. Can an undertaking having its registered office in a country
outside the European Union rely on the freedom of move-
ment of capital under Article 56 EC where it grants loans
commercially or predominantly to residents domiciled
within the European Union and has its registered office in a
country in which it is not subject, in relation to the taking
up and conduct of that business activity, to the requirement
of prior authorisation by a State authority of that country
or the requirement of regular supervision of its business
activity in a manner which is customary in respect of credit
institutions within the European Union, and in this particu-
lar case within the Federal Republic of Germany, or does
reliance on freedom of movement of capital in such a case
constitute misuse of the law?