Case C-76/05: Reference for a preliminary ruling from the Finanzgericht Köln by order of that court of 27 January 2005 in Herbert Schwarz and Marga Gootjes-Schwarz v Finanzamt Bergisch Gladbach
Date: 2005-04-16
Institutions: Court of Justice
Subjects: Germany, free movement of workers, freedom to provide services, interpretation of the law, school fees, tax on income, tax relief

16.4.2005

EN

Official Journal of the European Union

C 93/15

How is the term ‘full cost’ in Article 11(A)(1)(c) of Directive
77/388/EC (1) to be interpreted? Does the full cost for the
privately used dwelling in a building forming, in its entirety,
part of the assets of a business comprise, in addition to recur-
ring expenses, annual depreciation for the wear and tear of
buildings in accordance with the applicable national rules and/
or the annual proportion of the acquisition and production
cost - calculated on the basis of the applicable national period
for adjustment of deductions – that has given rise to a right to
deduct value added tax?

Reference for a preliminary ruling from the Tribunale di
Livorno by order of that court of 22 December 2004 in
Gentilini unberto v Dal Colle Industria Dolciaria S.p.A.

(Case C-78/05)

(1) OJ L 145 of 13.06.1977, p. 1.

(2005/C 93/28)

(Language of the case: Italian)

Reference for a preliminary ruling from the Finanzgericht
Köln by order of that court of 27 January 2005 in Herbert
and Marga Gootjes-Schwarz v Finanzamt
Schwarz

Bergisch Gladbach

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale di Livorno (Italy)
of 22 December 2004, received at the Court Registry on 17
February 2005, for a preliminary ruling in the proceedings
between Gentilini unberto and Dal Colle Industria Dolciaria
S.p.A.on the following questions:

(Case C-76/05)

(2005/C 93/27)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Finanzgericht Köln
(Germany) of 27 January 2005, received at the Court Registry
on 16 February 2005, for a preliminary ruling in the proceed-
ings between Herbert Schwarz and Marga Gootjes-Schwarz and
Finanzamt Bergisch Gladbach on the following question:

Is it contrary to Articles 8(a)/18 (freedom of movement), 48/39
(freedom of movement for workers), 52/43 (freedom of estab-
lishment) or 59/49 (freedom to provide services) of the EC
Treaty to treat payments of school fees to certain German
schools, but not payments of school fees to schools in the rest
of
the European Community area, as special expenditure
leading to a reduction of income tax, pursuant to Paragraph
10(1)(9) of the Einkommensteuergesetz (Law on Income Tax)
as applicable in 1998 and 1999?

it

is permissible for the national

(a) Given the content of Article 17 of Council Directive
86/653 of 18 December 1986 (1) on the coordination of
the laws of the Member States relating to self-employed
commercial agents, can Article 19 be interpreted as
meaning that
imple-
menting legislation to provide that the indemnity owed to
an agent is payable under a collective agreement binding
on its signatories, without regard to the conditions set out
in the two indents of paragraph 2(a) of Article 17 and is
calculated not in accordance with the criteria to be found
in the directive but in accordance with the criteria set in
the collective economic agreement itself, with the result
that, in many cases, the level of the indemnity to be paid
would have to be significantly lower than the ceiling
provided for in the directive.

(b) Should the indemnity be calculated individually by esti-
mating the further commissions that the agent could have
earned in the years following termination of the contract
on the basis of the new customers he has brought or the
growth in business that he has generated, using the
criterion of equity only to adjust the amount, or are other,
composite, methods of calculation permitted, which make
greater use of the criterion of equity.

(1) OJ L 382 of 31.12.1986, p. 17.