Case C-170/05: Reference for a preliminary ruling from the Conseil d'Etat (France) by order of that court of 15 December 2004 in Societe Denkavit International BV and Denkavit France Sarl v Minister for Economic Affairs, Finance and Industry
Date: 2005-06-25
Institutions: Court of Justice
Subjects: France, corporation tax, interpretation of the law, parent company, right of establishment, tax convention

C 155/4

EN

Official Journal of the European Union

25.6.2005

Reference for a preliminary ruling from the Commissione
Tributaria Regionale di Firenze, Sezione 33, by order of
that court of 23 March 2005 in the proceedings between
Villa Maria Beatrice Hospital Srl and Agenzia Entrate —
Ufficio Firenze 1

(Case C-155/05)

(2005/C 155/07)

(Language of the case: Italian)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Commissione Tributaria
Regionale di Firenze, Sezione 33 (Florence Regional Tax Court,
Section 33) (Italy) of 23 March 2005, received at the Court
Registry on 6 April 2005,
for a preliminary ruling in the
proceedings between Villa Maria Beatrice Hospital Srl and
Agenzia Entrate — Ufficio Firenze 1 on the following question:

Is paragraph 27d of Article 10 of Presidential Decree No 633
of 26 October 1972 compatible with subparagraph (c) of
Article 13B (‘Other exemptions’) of Sixth Council Directive
77/388/EEC of 17 May 1977? (1)

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

Reference for a preliminary ruling from the Audiencia
Provincial de Madrid by order of that court of 15 February
2005 in the proceedings between Elisa María Mostaza
Claro v Centro Movil Milenium, S.L.

May the protection of consumers under Council Directive
93/13/EEC (1) of 5 April 1993 on unfair terms in consumer
contracts require the court hearing an action for annulment of
an arbitration award to determine whether the arbitration
agreement is void and to annul the award if it finds that that
arbitration agreement contains an unfair term to the consu-
mer's detriment, when that issue is raised in the action for
annulment but was not raised by the consumer in the arbitra-
tion proceedings?

(1) OJ L 95 of 21. 4. 1993, p. 29.

Reference for a preliminary ruling from the Conseil d'Etat
(France) by order of that court of 15 December 2004 in
Societe Denkavit International BV and Denkavit France
Sarl v Minister for Economic Affairs, Finance and Industry

(Case C-170/05)

(2005/C 155/09)

(Language of the case: French)

(Case C-168/05)

(2005/C 155/08)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Conseil d'Etat (France) of 15
the Court Registry on 15
December 2004,
December 2004, for a preliminary ruling in the proceedings
between Societe Denkavit
International BV and Denkavit
France Sarl and Minister for Economic Affairs, Finance and
Industry on the following questions:

received at

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Audiencia Provincial de
Madrid (Spain) of 15 February 2005, received at the Court
Registry on 14 April 2005, for a preliminary ruling in the
proceedings between Elisa María Mostaza Claro and Centro
Movil Milenium, S.L. on the following question:

1. Is a system which imposes the burden of taxation on a
parent company in receipt of dividends which is not domi-
ciled in France, while relieving parent companies which are
domiciled in France of a similar burden, open to challenge
in the light of the principle of freedom of establishment?

25.6.2005

EN

Official Journal of the European Union

C 155/5

2. Is such a system of deduction at source itself open to chal-
lenge in the light of the principle of freedom of establish-
ment, or, where a taxation agreement between France and
another Member State authorising that deduction at source
provides for the tax due in that other Member State to be
set off against
the tax charged in accordance with the
disputed system, must that agreement be taken into account
in assessing the compatibility of the system with the prin-
ciple of freedom of establishment?

3. In the event that the second alternative set out at 2 above is
held to apply, is the existence of the aforementioned agree-
ment sufficient to ensure that the disputed system may be
regarded merely as a means of apportioning the taxable
item between the two States concerned without any effect
on the undertakings, or must
that a parent
company which is not domiciled in France may be unable
to set off tax as provided for by the agreement mean that
this system must be regarded as incompatible with the prin-
ciple of freedom of establishment?

the fact

Instance of

Appeal brought on 15 April 2005 by L. Piau against the
judgment delivered on 26 January 2005 by the Court of
the European Communities (Fourth
First
Chamber)
in Case T-193/02 between L. Piau and the
Commission of the European Communities, supported by
the Fédération Internationale de Football Association
(FIFA)

(Case C-171/05 P)

(2005/C 155/10)

(Language of the case: French)

An appeal against the judgment delivered on 26 January 2005
by the Court of First Instance of the European Communities
(Fourth Chamber) in Case T-193/02 between L. Piau and the
Commission of the European Communities, supported by the
Fédération Internationale de Football Association (FIFA), was
brought before the Court of Justice of the European Commu-
nities on 26 January 2005 by L. Piau, represented by M.
Fauconnet, avocat.

2. annul the decision of the European Commission of 15 April

2002;

3. give final judgment in the matter itself, by application of the
first paragraph of Article 61 of the Statute of the Court of
Justice, since the state of the proceedings so permits;

4. order FIFA to pay the costs of Case T-193/02 and of this

appeal.

Pleas in law and main arguments

1. Infringement of the applicant's rights

The Court of First Instance, by failing of its own motion to
raise the question of the breach of Article 253 EC by the
Commission, which failed to give reasons for its rejection
of the applicant's complaint under Article 49 EC, failed to
have regard to the powers attributed to it. Furthermore,
the Court of First Instance infringed Article 6(1) of the
European Convention for the Protection of Human Rights
and Fundamental Freedoms because it failed to take into
account some of the pleas advanced by the applicant.

2. Infringement of Article 81 EC

In the absence of factual evidence regarding the necessary
regulation of the profession and evidence showing the
economic or technical progress of FIFA's regulation of
players' agents, the decision of the Court of First Instance
is without a legal basis. The Court of First Instance erred in
law in holding that there was no Community interest in
pursuing the complaint, although the judgment had no
legal basis and Article 81 EC had been infringed.

3. Infringement of Article 82 EC

In the absence of enquiries by the Commission into the
dominant position of FIFA and into possible abuse thereof,
the Court of First Instance could not assume the role of
the Commission, after having established the existence of
that dominant position, and find that there was no abuse,
erring in law and thus infringing Article 82 EC.

4. Contradictory and insufficient reasoning of the Court of
First Instance amounting to a lack of reasoning as to the
continuation of anti-competitive effects.

5. Error in law as to the equivalence of the ‘FIFA diplomas’.

The applicant claims that the Court should:

6. Infringement of the general principle of legal certainty.

1. set aside the judgment of the Court of First Instance in Case

7. Error

in law as regards the task and powers of

the

T-193/02;

Commission.