Judgment of the Court (Grand Chamber) of  13 December 2005  in Case C-446/03, Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division Marks & Spencer plc v David Halsey (Her Majesty's Inspector of Taxes) (Articles 43 EC and 48 EC — Corporation tax — Groups of companies — Tax relief — Profits of parent companies — Deduction of losses incurred by a resident subsidiary — Allowed — Deduction of losses incurred in another Member State by a non-resident subsidiary — Not included)
Date: 2006-02-11
Institutions: Court of Justice
Subjects: United Kingdom, corporation tax, group of companies, interpretation of the law, tax on profits of self-employment, tax relief, tax system

11.2.2006

EN

Official Journal of the European Union

C 36/5

3. The Republic of Austria is ordered to pay the costs.

such registration is possible, on compliance with certain conditions,
where the two companies participating in the merger are both estab-
lished in the territory of the first Member State.

4. The Federal Republic of Germany, the Italian Republic and the
Kingdom of the Netherlands are ordered to bear their own costs.

(1) OJ C 289, 29.11.2003.

(1) OJ C 226, 20. 9.2003.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Grand Chamber)

(Grand Chamber)

of 13 December 2005

of 13 December 2005

in Case C-411/03, Reference for a preliminary ruling from
the Landgericht Koblenz in proceedings against SEVIC
Systems AG (1)

in Case C-446/03, Reference for a preliminary ruling from
the High Court of Justice of England and Wales, Chancery
Division Marks & Spencer plc v David Halsey (Her Majes-
ty's Inspector of Taxes) (1)

(Freedom of establishment — Articles 43 EC and 48 EC —
registration in the
Cross-border mergers — Refusal of

national commercial register — Compatibility)

(Articles 43 EC and 48 EC — Corporation tax — Groups of
companies — Tax relief — Profits of parent companies —
Deduction of losses incurred by a resident subsidiary —
Allowed — Deduction of losses incurred in another Member
State by a non-resident subsidiary — Not included)

(2006/C 36/08)

(Language of the case: German)

(2006/C 36/09)

In Case C-411/03: reference for a preliminary ruling under
Article 234 EC from the Landgericht Koblenz (Germany), made
by decision of 16 September 2003, received at the Court on 2
October 2003, in proceedings against SEVIC Systems AG —
the Court (Grand Chamber) composed of V. Skouris, President,
P.
Jann, C.W.A. Timmermans, A. Rosas and K. Schiemann,
Presidents of Chambers; C. Gulmann (Rapporteur), J.N. Cunha
Rodrigues, R. Silva de Lapuerta, K. Lenaerts, P. Kūris, E. Juhász,
G. Arestis and A. Borg Barthet Judges; A. Tizzano, Advocate
General; L. Hewlett, Principal Administrator, for the Registrar,
gave a judgment on 13 December 2005, the operative part of
which is as follows:

Articles 43 EC and 48 EC preclude registration in the national
commercial register of the merger by dissolution without liquidation of
one company and transfer of
its assets to another
company from being refused in general in a Member State where one
of the two companies is established in another Member State, whereas

the whole of

(Language of the case: English)

In Case C-446/03: reference for a preliminary ruling under
Article 234 EC from the High Court of Justice of England and
Wales, Chancery Division (United Kingdom), made by decision
of 16 July 2003, received at the Court on 22 October 2003, in
the proceedings between Marks & Spencer plc and David
Halsey (Her Majesty's Inspector of Taxes) — the Court (Grand
Chamber), composed of V. Skouris, President of the Chamber,
P.
Jann, C.W.A. Timmermans and A. Rosas, Presidents of
Chambers, C. Gulmann (Rapporteur), A. La Pergola, J. P. Puisso-
chet, R. Schintgen, N. Colneric, J. Klučka, U. Lõhmus, E. Levits
Judges; M. Poiares Maduro, Advocate
and A. Ó Caoimh,
General; K. Sztranc, Administrator, for the Registrar, gave a
judgment on 13 December 2005, the operative part of which
is as follows:

C 36/6

EN

Official Journal of the European Union

11.2.2006

As Community law now stands, Articles 43 EC and 48 EC do not
preclude provisions of a Member State which generally prevent a resi-
dent parent company from deducting from its taxable profits losses
incurred in another Member State by a subsidiary established in that
Member State although they allow it to deduct losses incurred by a
resident subsidiary. However, it is contrary to Articles 43 EC and 48
EC to prevent the resident parent company from doing so where the
non-resident subsidiary has exhausted the possibilities available in its
State of residence of having the losses taken into account for the
accounting period concerned by the claim for relief and also for
previous accounting periods and where there are no possibilities for
those losses to be taken into account in its State of residence for future
periods either by the subsidiary itself or by a third party, in particular
where the subsidiary has been sold to that third party.

(1) OJ C 304, 13.12.2003.

JUDGMENT OF THE COURT

(Grand Chamber)

of 6 December 2005

in Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04;
reference for a preliminary ruling from the High Court of
Justice of England and Wales, Queen's Bench Division
(Administrative Court): The Queen, on the application of:
ABNA Ltd, Denis Brinicombe, BOCM Pauls Ltd, Devenish
Nutrition Ltd, Nutrition Services
(International) Ltd,
Primary Diets Ltd v Secretary of State for Health, Food
Standards Agency (C-453/03); references from the Consi-
glio di Stato: Fratelli Martini & C. SpA, Cargill Srl, v Minis-
tero delle Politiche Agricole e Forestali, Ministero della
Salute, Ministero delle Attività Produttive (C-11/04) and
Ferrari Mangimi Srl, Associazione nazionale tra i produt-
tori di alimenti zootecnici (Assalzoo) v Ministero delle
Politiche Agricole e Forestali, Ministero della Salute, Minis-
tero delle Attività Produttive (C-12/04); reference for a
preliminary ruling from the Rechtbank 's-Gravenhage:
Nederlandse Vereniging Diervoederindustrie (Nevedi) v
Productschap Diervoeder (C-194/04) (1)

(Animal health and public health requirements — Composite
feedingstuffs for animals — Indication of the exact percen-
tage of the components of a product — Infringement of the
principle of proportionality)

(2006/C 36/10)

(Languages of the cases: English, Italian and Dutch)

brought by the High Court of Justice of England and Wales,
Queen's Bench Division (Administrative Court)
(United
Kingdom) (C-453/03), by the Consiglio di Stato (Italy) (C-11/04
and C-12/04) and by the Rechtbank 's-Gravenhage (Nether-
lands)
(C-194/04), by decisions of 23 October 2003, 11
November 2003 and 22 April 2004, received by the Court on
27 October 2003, 15 January 2004 and 26 April 2004 respec-
tively, in the proceedings The Queen, on the application of:
ABNA Ltd, Denis Brinicombe, BOCM Pauls Ltd, Devenish
Nutrition Ltd, Nutrition Services
(International) Ltd,
Primary Diets Ltd v Secretary of State for Health, Food
Standards Agency, (C-453/03); Fratelli Martini & C. SpA,
Cargill Srl, v Ministero delle Politiche Agricole e Forestali,
Ministero della Salute, Ministero delle Attività Produttive
(C-11/04); Ferrari Mangimi Srl, Associazione nazionale tra i
produttori di alimenti zootecnici (Assalzoo) v Ministero
delle Politiche Agricole e Forestali, Ministero della Salute,
Ministero delle Attività Produttive (C-12/04); and Neder-
landse Vereniging Diervoederindustrie
v
Productschap Diervoeder (C-194/04) — the Court (Grand
Chamber) composed of V. Skouris, President, P. Jann, C.W.A.
Timmermans and A. Rosas (Rapporteur), Presidents of Cham-
bers, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues, R. Silva
de Lapuerta, P. Kūris, E. Juhász, G. Arestis, A. Borg Barthet and
M. Ilešič, Judges; A. Tizzano, Advocate General; M.-F. Contet,
Principal Administrator, and K. Sztranc, Administrator, for the
Registrar, gave a judgment on 6 December 2005, the operative
part of which is as follows:

(Nevedi),

1. Examination of heading (a) of the question referred in Case C-
453/03, of Question 1 in Cases C-11/04 and C-12/04, and of
Question 1(a) in Case C-194/04 has not revealed any factor
capable of supporting the conclusion that Article 1(1)(b) and 1(4)
of Directive 2002/2/EC of the European Parliament and of the
Council of 28 January 2002 amending Council Directive
79/373/EEC on the circulation of compound feedingstuffs and
repealing Commission Directive 91/357/EEC was not validly
adopted on the basis of Article 152(4)(b) EC.

2. Examination of Question 4 in Case C-12/04 has not revealed
any factor capable of affecting the validity of Article 1(1)(b) and
1(4) of Directive 2002/2 in the light of the principle of equal
treatment and non-discrimination.

3. Article 1(1)(b) of Directive 2002/2, which requires manufacturers
of compound animal
feedingstuffs to indicate, at a customer's
request, the exact composition of a feedingstuff, is invalid in the
light of the principle of proportionality. By contrast, examination
of heading (c) of the question referred in Case C-453/03, of Ques-
tion 2 in Cases C-11/04 and C-12/04, and Question 1(c) in
Case C-194/04 has not revealed any factor capable of affecting
the validity of Article 1(4) of Directive 2002/2 in the light of
that principle.

In Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04:
for preliminary rulings under Article 234 EC,
References

4. Directive 2002/2 must be interpreted as meaning that its applica-
tion is not contingent on the adoption of the positive list of feed
materials designated by their specific names referred to in recital
(10) in the preamble to that directive.