Case C-72/05: Reference for a preliminary ruling from the Finanzgericht München by order of that court of 1 February 2005 in Household of Jörg and Stefanie Wollny v Finanzgericht Landshut
Date: 2005-04-16
Institutions: Court of Justice
Subjects: VAT, acquisition of property, building, housing, interpretation of the law, tax exemption, type of business

C 93/14

EN

Official Journal of the European Union

16.4.2005

4. Is the procedure for verifying the compatibility with Com-
munity provisions of the hunting derogations authorised by
the Italian Regions under Article 19a of Law No 157/92,
preceded by a period of notice and therefore requiring fixed
periods of time, which are also necessary for the adoption
and publication of the measure, during which the brief
period of hunting derogations itself may expire, suitable for
ensuring effective application of Directive 79/409/EC?

(1) OJ L 103 of 25.04.1979, p. 1.

Action brought on 14 February 2005 by the Commission
of the European Communities against the Kingdom of the
Netherlands

(Case C-66/05)

(2005/C 93/25)

(Language of the case: Dutch)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
14 February 2005 by the Commission of
the European
Communities, represented by Dennis Martin and Pieter van
Nuffel, acting as Agents.

The Commission claims that the Court should:

1. Declare that by taking into account, when calculating sick-
ness insurance contributions, the pensions paid under the
legislation of a Member State other than the Netherlands,
the Kingdom of the Netherlands has failed to fulfil its obliga-
tions under Article 33(1) of Regulation (EEC) No
1408/71; (1)

2. Order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

a ‘national
insurance’ scheme. Under the Wet Financiering
Volksverzekeringen (Law on the financing of national insurance
schemes) all
insured persons are liable to pay contributions.
The contribution is calculated on the basis of their income as a
whole.

The result of this legislation is that a person who lives in the
Netherlands and receives both a Netherlands pension and a
pension under the legislation of another Member State is
insured under the AWBZ for special sickness costs but is also
liable to pay contributions. When calculating that contribution,
both his Netherlands pension and his other pension are taken
into account.

According to the Commission, Article 33(1) of the Regulation
only permits the Netherlands pension to be taken into account
when calculating that contribution; according to the Nether-
lands, the entire income may be taken into account, including
the pension which the person concerned receives under the
legislation of another Member State.

(1) (OJ, English special edition, 1971 (II), p. 416). Regulation amended
and updated by Regulation (EC) No 118/97 (OJ L 28 of 30.1.1997,
p. 1) and last amended by Regulation (EC) No 631/2004 of the
European Parliament and of the Council (OJ L 100 of 6.4.2004, p.
1).

Reference for a preliminary ruling from the Finanzgericht
München by order of that court of 1 February 2005 in
Household of Jörg and Stefanie Wollny v Finanzgericht
Landshut

(Case C-72/05)

(2005/C 93/26)

(Language of the case: German)

The purpose of the Algemene Wet Bijzondere Ziektekosten
(General law on special sickness costs; ‘AWBZ’) is to cover the
cost of treatment, care and nursing in the case of serious long-
term sickness or invalidity. All inhabitants, that is to say all
persons resident in the Netherlands, are insured. It is therefore

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht München
(Germany) of 1 February 2005, received at the Court Registry
on 15 February 2005, for a preliminary ruling in the proceed-
ings between Household of
Jörg and Stefanie Wollny and
Finanzgericht Landshut on the following question:

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.