Case C-363/05: Reference for a preliminary ruling from the VAT and Duties Tribunals, London by Direction of that court of  19 September 2005  in 1) J.P. Morgan Fleming Claverhouse Investment Trust plc 2) The Association of Investment Trust Companies v Commissioners of HM Revenue and Customs
Date: 2005-12-24
Institutions: Court of Justice
Subjects: interpretation of the law, investment company, tax exemption, tax harmonisation, tax system

24.12.2005

EN

Official Journal of the European Union

C 330/7

JUDGMENT OF THE COURT

(Fourth Chamber)

of 27 October 2005

Reference for a preliminary ruling from the VAT and
Duties Tribunals, London by Direction of that court of 19
September 2005 in 1) J.P. Morgan Fleming Claverhouse
Investment Trust plc 2) The Association of Investment
Trust Companies v Commissioners of HM Revenue and
Customs

in Case C-165/05: Commission of the European Commu-
nities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations — Free move-
ment of persons — Workers — Spouses — Requirement of a
work permit for spouses who are nationals of non-member
countries)

(2005/C 330/13)

(Language of the case: French)

In Case C-165/05 Commission of the European Commu-
nities (Agent: G. Rozet) v Grand Duchy of Luxembourg
(Agent: S. Schreiner) — action under Article 226 EC for failure
to fulfil obligations, brought on 8 April 2005 — the Court
(Fourth Chamber),
J.N. Cunha Rodrigues
(Rapporteur), acting as President of the Fourth Chamber, K.
Lenaerts and E. Levits, Judges; J. Kokott, Advocate General; R.
Grass, Registrar, gave a judgment on 27 October 2005,
in
which it:

composed of

1. Declares that, by imposing in its legislation an obligation on
nationals of non-member countries married to migrant workers
from the European Union to obtain a work permit and by failing
to bring its legislation into line with Community law, the Grand
Duchy of Luxembourg has failed to fulfil its obligations under
Article 11 of Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for workers within the
Community;

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 132 of 28.05.2005.

(Case C-363/05)

(2005/C 330/14)

(Language of the case: English)

Reference has been made to the Court of Justice of the Euro-
pean Communities by Direction of the VAT and Duties Tribu-
nals, London, of 19 September 2005, received at the Court
Registry on 26 September 2005, for a preliminary ruling in the
proceedings between 1)
J.P. Morgan Fleming Claverhouse
Investment Trust plc 2) The Association of Investment Trust
Companies and Commissioners of HM Revenue and Customs,
on the following questions:

1. Are the words ‘special investment funds’ in Article 13B(d)(6)
of the Sixth Directive (1) capable of including closed-ended
investment funds, such as ITCs?

2. If the answer to the first question is in the affirmative, does
in Article

the phrase ‘as defined by Member States’
13B(d)(6):

a. allow Member States to select certain of

the ‘special
funds’ within their jurisdiction to benefit
the supply of management

investment
from the exemption of
services and exclude others from the exemption, or

b. does it mean that the Member States are to identify those
funds within their jurisdiction which fall within the defi-
nition of ‘special investment funds’ and that the benefit
of exemption should extend to all such funds?

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.