Case C-35/05: Reference for a preliminary ruling from the Corte Suprema di Cassazione by order of that court of 23 June 2004 and 10 November 2004, received at the Court Registry on 31 January 2005, in the case of Reemtsma Cigarettenfabriken Gmbh against Ministero delle Finanze
Date: 2005-04-16
Institutions: Court of Justice
Subjects: EU law - national law, VAT, free movement of goods, interpretation of the law, residence, tax rebate

C 93/8

EN

Official Journal of the European Union

16.4.2005

Reference for a preliminary ruling from the Corte
Suprema di Cassazione by order of that court of 23 June
2004 and 10 November 2004, received at
the Court
Registry on 31 January 2005, in the case of Reemtsma
Cigarettenfabriken Gmbh against Ministero delle Finanze

taxes where both parties (the withholding agent and the
taxpayer) are entitled to apply to the revenue authorities for
reimbursement, contrary to the principles of effectiveness
and non-discrimination in the matter of reimbursement of
VAT collected in breach of Community law?

(1) OJ L 331 of 27 December 1979, p. 11.

(Case C-35/05)

(2005/C 93/14)

(Language of the case: Italian)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Corte Suprema di Cassa-
zione (Supreme Court of Cassation, Italy) by order of 23 June
2004 and 10 November 2004, received at the Court Registry
on 31 January 2005, for a preliminary ruling in the case of
Reemtsma Cigarettenfabriken Gmbh against Ministero delle
Finanze, on the following questions:

1) Must Articles 2 and 5 of

the Eighth Council Directive
79/1072/EEC (1) of 6 December 1979,
in so far as they
make reimbursement to a non-resident recipient of goods
or services conditional on use of the goods and services for
the purposes of
taxable transactions, be interpreted as
meaning that even VAT that is not due, has been charged
incorrectly as output tax and paid to the revenue authorities
is refundable? If
is a
the answer is in the affirmative,
to a
national provision which precludes reimbursement
non-resident recipient of goods or services on the ground
that the tax charged and paid although not due is not
deductible contrary to the abovementioned provisions?

2) In general,

is it possible to infer from the uniform Com-
munity rules that the recipient of goods or services is the
person liable for payment of tax to the revenue authorities?
Is it compatible with those rules and in particular with the
principles of neutrality of VAT, effectiveness and non-discri-
mination, not to grant under domestic law to a recipient of
goods or services who is subject to VAT and who is treated
under national law as being subject to the obligations of
invoicing and payment of
the
revenue authorities to claim reimbursement in cases where
tax that is not due is charged and paid? Are national rules –
as interpreted by the national courts – under which a reci-
pient of goods or services may bring an action only against
the transferor or provider of the service and not against the
revenue authorities, despite the existence of a case of substi-
tution of that kind under domestic law in relation to direct

the tax, a right against

Reference for a preliminary ruling from the Överklagande-
nämnden för högskolan by decision of that court of 1
February 2005 in Kaj Lyyski v Umeå universitet

(Case C-40/05)

(2005/C 93/15)

(Language of the case: Swedish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of the Överklagandenämnden
för högskolan (Sweden) of 1 February 2005, received at the
Court Registry on 3 February 2005, for a preliminary ruling in
the proceedings between Kaj Lyyski and Umeå universitet on
the following question:

1. Does Community law, in particular Article 12 EC, prevent
the imposition, on assessment of an applicant's eligibility for
admission to teacher training intended in the short term to
meet the need for qualified teachers in Sweden, of a require-
ment of employment in a Swedish school? Can such a
requirement be considered justified and proportional?

2. Does it make a difference to the answer to the first question
if an applicant for the training course who is employed in a
school in a Member State other than Sweden is a Swedish
national or a national of another Member State?

3. Does it make a difference to the answer to the first question
if the teacher training is intended to be of limited duration
or if the teacher involved is of a longer duration?