Case C-373/05 P: Appeal brought on  10 October 2005  by Bart Nijs against the order made on  26 May 2005  by the Court of First Instance of the European Communities (Second Chamber) in Case T-377/04 between Bart Nijs and the Court of Auditors of the European Communities
Date: 2005-12-24
Institutions: Court of Justice
Subjects: European Court of Auditors, European official, action by staff, appeal, promotion

C 330/8

EN

Official Journal of the European Union

24.12.2005

3. If the answer to the second question is that Member States
can select which ‘special investment funds’ benefit from the
exemption, how do the principles of fiscal neutrality, equal
treatment and the prevention of distortion of competition
affect the exercise of that discretion?

4. Does Article 13B(d)(6) have direct effect?

effect that they prohibit the levying of stamp duty, by virtue
of national legislation such as Decree Law No 322-B/2001
of 14 December 2001, which inserted paragraph 26 —
Capital Duty — in the General Table of Stamp duty, on a
limited company governed by Portuguese law when its
capital is increased, by payments in cash, when, as at 1 July
1984, that transaction was subject to that duty but was
exempted from it?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover taxes
– Common system of value added tax: uniform basis of assessment,
OJ L 145, 13.06.1977, p. 1

(1) OJ L 249, p. 25.
(2) O L 156, p. 23.

Reference for a preliminary ruling from the Supremo
Tribunal Administrativo by order of that court of 6 July
2005 in Optimus — Telecomunicações, S.A. v Fazenda
Pública

Appeal brought on 10 October 2005 by Bart Nijs against
the order made on 26 May 2005 by the Court of First
Instance of the European Communities (Second Chamber)
in Case T-377/04 between Bart Nijs and the Court of Audi-
tors of the European Communities

(Case C-366/05)

(2005/C 330/15)

(Language of the case: Portuguese)

(Case C-373/05 P)

(2005/C 330/16)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Supremo Tribunal Adminis-
trativo of 6 July 2005, received at the Court Registry on 29
September 2005, for a preliminary ruling in the proceedings
between Optimus — Telecomunicações, S.A. and Fazenda
Pública on the following questions:

1. Must Article 7(1) of Council Directive 69/335/EEC (1) of 17
July 1969 concerning indirect
taxes on the raising of
capital, as amended by Council Directive 85/303/EEC (2) of
10 June 1985, be interpreted restrictively so as to impose as
a precondition for the obligation which it
imposes on
Member States to exempt certain transactions involving the
raising of capital the requirement that the transactions in
question must be those which, under the wording of the
directive prior to 1985, could be exempted from the duty
or taxed at a reduced rate — that is to say only those
referred to in Article 4(2) and Article 8 — and which, in
addition, were in that situation as at 1 July 1984?

An appeal against the order made on 26 May 2005 by the
Court of First Instance of the European Communities (Second
Chamber) in Case T-377/04 between Bart Nijs and the Court of
Auditors of the European Communities was brought before the
Court of Justice of the European Communities on 10 October
2005 by Bart Nijs, represented by Fränk Rollinger, lawyer.

The applicant claims that the Court should:

— declare this appeal admissible in form;

— declare this appeal well-founded on the substance;

— find that the subject-matter of Bart Nijs's complaint of 27
February 2004 is identical
to the subject-matter of his
application lodged on 16 September 2004 at the Registry
of the Court of First Instance;

— declare the application of Bart Nijs admissible;

2. Must Article 7(1) of Council Directive 69/335/EEC of 17
July 1969 concerning indirect
taxes on the raising of
capital, as amended by Council Directive 85/303/EEC of 10
June 1985, and Article 10 thereof be interpreted to the

— consequently, annul the order of the Second Chamber of
the Court of First Instance of 26 May 2005 and refer this
case back to the Court of First Instance with a different
composition for a hearing.

24.12.2005

EN

Official Journal of the European Union

C 330/9

Pleas in law and main arguments

1992 (3) as amended by Commission Regulation (EC) No
2311/96 of 2 December 1996 (4):

The applicant submits that the Court of First Instance wrongly
found that Bart Nijs's application was inadmissible, while he
maintains that the pre-litigation procedure, and more specifi-
cally Article 90(2) of the Statute, was complied with.

Reference for a preliminary ruling from the Bundesver-
waltungsgericht by order of that court of 23 August 2005
in Erhard Geuting v Direktor der Landwirtschaftskammer
Nordrhein-Westfalen

(Case C-375/05)

(2005/C 330/17)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesverwaltungsgericht
of 23 August 2005, received at the Court Registry on 12
October 2005, for a preliminary ruling in the proceedings
between Erhard Geuting and the Direktor der Landwirtschafts-
kammer Nordrhein-Westfalen on the following questions:

1. For the purposes of Article 4a(ii) of Regulation (EEC) No
805/68 of the Council of 27 June 1968 (1) as amended by
Council Regulation (EEC) No 2066/92 of 30 June 1992 (2):

(a) Is an in-calf heifer only a suckler cow within the
meaning of
it
replaces a suckler cow for which an application for a
premium has been made?

the first section of

the regulation if

(b) Is an in-calf heifer also a suckler cow within the
meaning of the first section of the regulation if, in the
previous marketing year, it replaced a suckler cow for
which an application for a premium had been made and
was regarded as eligible for a premium?

(c) Is an in-calf heifer for which application for a premium
has been made to be regarded at any rate as eligible for
a premium if it calves before the end of the period for
lodging applications?

2. The following questions are also referred to the Court of
Justice of
the European Communities for a preliminary
ruling on the interpretation of Article 33(2) and (4) of
Commission Regulation (EEC) No 3886/92 of 23 December

(a) Has a producer not made use of premium rights during a
marketing year if he has applied for a premium but his
application has been rejected
animals
concerned were not eligible for premiums?

because

the

Is this also the case if there is no indication of an improper
application having been made?

Would this be compatible with the Community principle of
proportionality?

(b) Should Article 33(2) of Regulation (EEC) No 3886/92 be
interpreted as meaning that,
in an instance such as this,
premium rights are maintained because it constitutes a
(duly justified) exceptional case?

(c) Should premium rights that are withdrawn from a producer
under Article 33(4) of Regulation (EEC) No 3886/92
because he made use of more than 70 % but less than 90 %
of his premium rights in the 1998 marketing year be
granted to that producer on a preferential basis on the
expiry of the two-year exclusion period?

(1) OJ, English Special Edition 1968 (I), p. 187.
(2) OJ L 215, p. 49.
(3) OJ L 391, p. 20.
(4) OJ L 313, p. 9.

Reference for a preliminary ruling from the Cour de cassa-
tion (Belgium) by judgment of that court of 9 September
2005 in Samotor SPRL v Belgian State

(Case C-378/05)

(2005/C 330/18)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of
the Cour de cassation
(Belgium) of 9 September 2005, received at the Court Registry
on 14 October 2005, for a preliminary ruling in the proceed-
ings between Samotor SPRL and the Belgian State on the
following questions: