Case C-231/05: 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
Date: 2005-08-06
Institutions: Court of Justice
Subjects: Finland, capital transfer, corporation tax, discrimination on the basis of nationality, interpretation of the law, parent company, subsidiary, tax relief

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.