Case C-199/05: Reference for a preliminary ruling from the Cour d'appel de Bruxelles by judgment of that court of 28 April 2005 in European Community v Belgian State
Date: 2005-07-23
Institutions: Court of Justice
Subjects: Protocol (EU), indirect tax, interpretation of the law, redemption, services of general interest, tax exemption

C 182/26

EN

Official Journal of the European Union

23.7.2005

(1) Is the Combined Nomenclature (CN)

in the version of
to Regulation (EC) No 1789/2003 (1) of 11
Annex I
September 2003 amending Annex I to Council Regulation
(EEC) No 2658/87 (2) on the tariff and statistical nomencla-
ture and the Common Customs Tariff (CCT) to be inter-
preted as meaning that pizza cheese (mozzarella) that was
stored after its manufacture for one to two weeks at 2 to 4°
C is to be classified under subheading 0406 10 CN?

(2) In the absence of Community rules, may the examination
of whether cheese is fresh cheese within the meaning of
subheading 0406 10 CN be carried out on the basis of
organoleptic features?

(1) OJ 2003 L 281, p. 1.
(2) OJ 1987 L 256, p. 1.

in so far as it lays down that lending is not subject to any
authorisation or remuneration after at least 18 months from
the first act of the distribution period, or after at least 24
months from the realisation of those works if the right of
distribution is not exercised.

The Commission submits that in exempting all State book and
record libraries from the payment of remuneration, that article
of Law No 633/41 simultaneously infringes Article 5(2) and
Article 5(3) of Directive 92/100/EEC. By not complying with
the conditions for the grant of a derogation from exclusive
lending right
that provision also
infringes Article 1 of that directive.

for public institutions,

(1) OJ 1992 L 346, p. 61 of 27.11.1992.

Action brought on 4 May 2005 by the Commission of the
European Communities against the Italian Republic

(Case C-198/05)

(2005/C 182/48)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 May 2005
by the Commission of the European Communities, represented
by W. Wils and L. Pignataro, acting as Agents.

The applicant claims that the Court should:

1. declare that the Italian Republic has failed to fulfil its obliga-
tions under Articles 1 and 5 of Directive 92/100/EEC of 19
November 1992 (1) in that all the categories of establish-
ments which are accessible to the public within the
meaning of the directive are exempt from public lending
right.

2. order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission notes that Article 69(1)(b) of Law No 633/41
exempts all State book and record libraries from lending right

Reference for a preliminary ruling from the Cour d'appel
de Bruxelles by judgment of that court of 28 April 2005
in European Community v Belgian State

(Case C-199/05)

(2005/C 182/49)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour d'appel de Brux-
elles (Court of Appeal, Brussels) of 28 April 2005, received at
the Court Registry on 9 May 2005, for a preliminary ruling in
the proceedings between the European Community and the
Belgian State on the following questions:

1. Must the second paragraph of Article 3 of the Protocol on
the Privileges and Immunities of the European Communities,
which provides that the governments of the Member States
shall take the appropriate measures to remit or refund the
amount of indirect taxes or sales taxes, be interpreted as
meaning that a proportional duty levied in respect of deci-
courts and tribunals, given in all matters,
sions of
concerning orders to pay amounts of money or securities
and calculation of amounts of money or securities payable
falls within its scope?

23.7.2005

EN

Official Journal of the European Union

C 182/27

2. Must the third paragraph of Article 3 of the Protocol on the
Privileges and Immunities of the European Communities,
which provides that no exemption shall be granted in
respect of a mere charge for a public utility service, be inter-
preted as meaning that the tax charged at the outcome of
proceedings to the losing party, who is ordered to pay a
specified amount, constitutes a mere charge for a public
utility service?

(i) certain dividends received by an insurance company
resident in a Member State from a company resident in
another Member State (‘the non-resident company’)
were chargeable to corporation tax; but

(ii) the resident insurance company was allowed to elect
that corresponding dividends received from a company
resident
in the same Member State should not be
chargeable to corporation tax, with the further conse-
quence that a company which had made the election
to
was unable to claim payment of
which it would otherwise have been entitled?

the tax credit

Reference for a preliminary ruling from the High Court of
Justice (England and Wales), Chancery Division, by order
of that court of 18 March 2005 in The Test Claimants in
the CFC and Dividend Group Litigation v Commissioners
of Inland Revenue

3. Do Articles 43, 49 or 56 of

the EC Treaty preclude
national tax legislation in a Member State such as that in
issue in the main proceedings which:

(Case C-201/05)

(2005/C 182/50)

(Language of the case: English)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
Justice
(England and Wales), Chancery Division of 18 March 2005,
received at the Court Registry on 6 May 2005, for a preli-
minary ruling in the proceedings between The Test Claimants
in the CFC and Dividend Group Litigation and Commissioners
of Inland Revenue on the following questions:

the High Court of

1. Is it contrary to Articles 43 or 56 of the EC Treaty for a
Member State to keep in force and apply measures which:

(i) exempt from corporation tax dividends received by a
company resident in that Member State (‘the resident
company’) from other resident companies; but which

(ii) subject to corporation tax dividends received by the
resident company from a company resident in another
Member State and in particular a company controlled
by it resident in another Member State and subject to a
lower level of taxation there (‘the controlled company’),
after giving double taxation relief for any withholding
tax payable on the dividend and for the underlying tax
paid by the controlled company on its profits?

a) provides in specified circumstances for the imposition
of a charge to tax upon the resident company in
respect of the profits of a controlled company being a
company resident in another Member State as defined
in Question 1 (ii) above; and

b) imposes certain compliance requirements where the
resident company does not seek or is not able to claim
any exemption and pays tax in respect of the profits of
that controlled company; and

c) imposes further compliance requirements where the
resident company seeks to obtain exemption from that
tax?

4. Would the answer to Questions 1, 2 or 3 be different if
the controlled company (in Questions 1 and 3) or the non-
resident company (in Question 2) was resident in a third
country?

5. Where, prior to 31 December 1993, a Member State
adopted the measures outlined in Questions 1, 2 and 3,
and after that date amended those measures in the manner
described in Part C of this Schedule, and if those measures
as amended constitute restrictions prohibited by Article 56
of the EC Treaty, are those restrictions to be taken to be
restrictions which did not exist on the 31 December 1993
for the purposes of Article 57 EC?

2. Do Articles 43, 49 or 56 of

the EC Treaty preclude
national tax legislation such as that in issue in the main
proceedings under which, prior to 1st July 1997:

6. In the event that any of the measures referred to in Ques-
tions 1, 2 and 3 are contrary to the Community provisions
referred to,
then in circumstances where the resident
company and/or the controlled company make any of the
following claims: