Case C-228/05: Reference for a preliminary ruling from the Commissione Tributaria di Primo Grado di Trento, by order of that court of 21 March 2005 in Stradasfalti Srl v Agenzia Entrate Ufficio Trento
Date: 2005-08-06
Institutions: Court of Justice
Subjects: VAT, approximation of laws, basis of tax assessment, goods and services, interpretation of the law, provision of services, tax exemption

C 193/16

EN

Official Journal of the European Union

6.8.2005

1. Does Community law require the courts of

their own
motion to conduct an examination, that is to say an exami-
nation of grounds which are outside the terms of
the
dispute but are based on Directive 85/511/EEC? (1)

2. If the answer to Question 1 is affirmative, does the obliga-
tion on Member States under the first indent of Article
11(1) of Directive 85/511/EEC, read in conjunction with the
second indent of Article 13(1) thereof, to ensure that labora-
tory testing to detect the presence of FMD is carried out by
a laboratory listed in Annex B to Directive 85/511/EEC
have direct effect?

3.

(a) Must Article 11(1) of Directive 85/511/EEC be inter-
legal consequences must be
preted as meaning that
attached to the fact that the presence of FMD is found
by a laboratory which is not listed in Annex B to Direc-
tive 85/511/EEC?

(b) If the answer to Question 3(a) is in the affirmative:

Is the purpose of Article 11(1) of Directive 85/511/EEC
to protect the interests of individuals, such as the appel-
lants in the main proceedings? If not, can individuals,
such as the appellants in the main proceedings, plead
possible failure to fulfil the obligations which this provi-
sion places on the authorities of the Member States?

(c) If the answer to Question 3(b) means that individuals

can rely on Article 11(1) of Directive 85/511/EEC:

What legal consequences must be attached to a finding
of the presence of FMD by a laboratory which is not
listed in Annex B to Directive 85/511/EEC?

4. Must Annex B to Directive 85/511/EEC be interpreted,
having regard to Articles 11 and 13 thereof, as meaning
that the mention in Annex B to Directive 85/511/EEC of
‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must
refer also to ID-Lelystad B.V.?

5. If it follows from the above answers that the presence of
FMD can be found by a laboratory which is not listed in
Annex B to Directive 85/511/EEC or that Annex B to Direc-
tive 85/511/EEC must be interpreted as meaning that the
mention of
Instituut,
Lelystad’ can or must refer also to ID-Lelystad B.V.:

‘Centraal Diergeneeskundig

the

measures also on results obtained by a laboratory which is
not listed in Annex B to Directive 85/511/EEC — by the
results of the latter laboratory, or does the determination of
final authority in that regard fall within the procedural
autonomy of the Member State and must the court before
which the main proceedings are pending examine whether
the rules in that respect apply irrespective of whether the
laboratory examination is carried out by virtue of a Com-
munity or national legal obligation and of whether or not
the application of the provisions of national procedural law
renders the implementation of the Community rules extre-
mely difficult or practically impossible?

6. If the answer to Question 5 means that the issue of whether
national authorities are bound by the laboratory result is
governed by Directive 85/511/EEC:

Are the national authorities bound unconditionally by the
result of an FMD examination carried out by a laboratory? If
not, what margin of discretion does Directive 85/511/EEC
leave these national authorities?

(1) Council Directive 85/511/EEC of 18 November 1985 introducing
Community measures for the control of foot-and-mouth disease (OJ
1985 L 315, p. 11).

Reference for a preliminary ruling from the Commissione
Tributaria di Primo Grado di Trento, by order of that
court of 21 March 2005 in Stradasfalti Srl v Agenzia
Entrate Ufficio Trento

(Case C-228/05)

(2005/C 193/25)

(Language of the case: Italian)

Must Directive 85/511/EEC be interpreted as providing that
the national administrative authority authorised to adopt
decisions is bound by the outcome of an examination by a
laboratory which is
listed in Annex B to Directive
85/551/EEC or — if the answer to Question 2a means that
the administrative authority may base its FMD control

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Commissione Tributaria di
Primo Grado di Trento of 21 March 2005 received at the
Court Registry on 24 May 2005, for a preliminary ruling in the
proceedings between Stradasfalti Srl and Agenzia Entrate
Ufficio Trento on the following questions:

6.8.2005

EN

Official Journal of the European Union

C 193/17

1. Is the first sentence of Article 17(7) of Sixth Council Direc-
tive 77/388/EEC of 17 May 1977 (1), in relation to para-
graph 2 of that article, on the harmonisation of the laws of
the Member States on turnover taxes, to be interpreted as:

Reference for a preliminary ruling from the Korkein
hallinto-oikeus by order of that court of 23 May 2005 in
the proceedings brought by Oy Esab

(a) precluding from being treated as ‘consultation of the
VAT Committee’, for the purposes of Article 29 of that
directive, the mere notification by a Member State of the
adoption of a rule of national
like the present
Article 19a(1)(c) and (d) of Presidential Decree No
633/1972, as subsequently extended, which restricts the
right of VAT deduction in respect of the use and main-
tenance of goods under Article 17(2), on the basis that
the VAT Committee has merely taken notice of the
adoption of that rule;

law,

(b) also precluding from being treated as a measure falling
within its scope any restriction whatsoever of the right
to deduct VAT connected to the purchase, use and
maintenance of the goods referred to in (a) introduced
before the consultation of
the VAT Committee and
maintained in force by means of various legislative
extensions adopted in unbroken succession for more
than 25 years;

(c) if the answer to 1(b) is in the affirmative, the Court is
for determining
guidelines
the
asked to provide
maximum period,
such extensions on
if any,
grounds of cyclical economic reasons referred to in
Article 17(7) of the Sixth Directive, or else to state
whether the failure to observe the temporary nature of
the derogations (repeated over time) confers on the tax
payer the right to deduct.

for

2. If the requirements and conditions for the procedure under
Article 17(7) referred to above have not been complied
with, the Court of Justice is asked to state whether Article
17(2) of that directive is to be interpreted as precluding a
rule of national law or an administrative practice adopted
by a Member State after the entry into force of the Sixth
Directive (1 January 1979 for Italy) which, objectively and
restricts VAT deduction in
without
respect of the purchase, use and maintenance of certain
motor vehicles.

limitation in time,

(1) OJ L 145 of 13/06/1997 p. 1.

(Case C-231/05)

(2005/C 193/26)

(Language of the case: Finnish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Korkein hallinto-oikeus of
23 May 2005, received at the Court Registry on 25 May 2005,
for a preliminary ruling in the proceedings brought by Oy Esab
on the following question:

Are Articles 43 and 56 of the Treaty establishing the European
Communities, having regard to Article 58 of the Treaty and
Council Directive 90/435/EEC on the common system of taxa-
tion applicable in the case of parent companies and subsidiaries
of different Member States, (1) to be interpreted as precluding a
system such as that of the Finnish group subsidy legislation in
which a condition for the deductibility in taxation of a group
subsidy is that both the donor and the donee of the group
subsidy are companies resident in Finland?

(1) 23 July 1990, OJ L 225 of 20.8.1990, p. 6.

Action brought on 30 May 2005 by Commission of the
European Communities against the United Kingdom of
Great Britain and Northern Ireland

(Case C-236/05)

(2005/C 193/27)

(Language of the case: English)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of the
European Communities on 30 May 2005 by the Commission
of the European Communities, represented by Karen Banks,
acting as Agent, with an address for service in Luxembourg.