Case C-451/05: Reference for a preliminary ruling from the Cour de Cassation (France) by order of that court of  13 December 2005  in Elisa (Européenne et luxembourgeoise d'investissements SA) v Directeur général des Impôts, Direction des services généraux et de l'informatique and Ministère public
Date: 2006-03-11
Institutions: Court of Justice
Subjects: France, Luxembourg, corporation tax, holding company, interpretation of the law, tax convention, tax law

11.3.2006

EN

Official Journal of the European Union

C 60/19

Reference for a preliminary ruling from the Bundesfi-
nanzhof by order of that court of 20 October 2005 in
Werner Haderer v Finanzamt Wilmersdorf

Technology Directorate) Ministère public
Office) on the following questions:

(State Council's

(Case C-445/05)

(2006/C 60/37)

(Language of the case: Germany)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Federal
Finance Court) (Germany) of 20 October 2005, received at the
Court Registry on 14 December 2005, for a preliminary ruling
in the proceedings between Werner Haderer and Finanzamt
Wilmersdorf on the following question:

Is tuition for school or university given by a private teacher to
be exempt
from tax under Article 13A(1)(j) of Directive
77/388/EEC (1) only where the private teacher provides his
tuition services directly to the pupils/students as recipients of
those services — and therefore is paid by them — or is it suffi-
cient for the private teacher to provide his tuition services to a
school or university as recipient of those services?

(1) OJ 1977 L 145, p. 1.

1. Do Articles 52 et seq. and 73b et seq. of the EC Treaty
preclude legislation such as that laid down by Article 990D
et seq. of the General Tax Code which grants legal persons
having their effective centre of management in France enti-
tlement to exemption from the tax on the commercial value
of properties owned in France and which, as regards legal
persons having their effective centre of management in the
territory of another country, even if it is a Member State of
the European Union, makes that entitlement conditional on
the existence of a convention on administrative assistance to
combat
tax evasion and avoidance concluded between
France and that State or on there being a requirement,
under a treaty including a clause prohibiting discrimination
on grounds of nationality, that those legal persons are not
to be taxed more heavily than legal persons having their
effective centre of management in France?

2. Does a tax such as the tax at issue constitute a tax on
capital within the meaning of Article 1 of the Council Direc-
tive of 19 December 1977 concerning mutual assistance by
the competent authorities of the Member States in the field
of direct and indirect taxation? (1)

3. If

so, do the obligations

imposed on Member States
concerning mutual assistance in the field of taxation by the
Directive of 19 December 1977, cited above, preclude the
implementation by the Member States, under a bilateral
convention on administrative assistance in the field of taxa-
tion, of obligations of the same kind excluding a category of
taxpayers such as Luxembourg holding companies?

Reference for a preliminary ruling from the Cour de
Cassation (France) by order of that court of 13 December
2005 in Elisa (Européenne et luxembourgeoise d'investis-
sements SA) v Directeur général des Impôts, Direction des
services généraux et de l'informatique and Ministère
public

(Case C-451/05)

(2006/C 60/38)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Cour de Cassation (Court of
Cassation, France) of 13 December 2005, received at the Court
Registry on 19 December 2005, for a preliminary ruling in the
proceedings between Elisa (Européenne et
luxembourgeoise
d'investissements SA) and the Directeur général des Impôts
(Director-General of Taxes, General Services and Information

4. Do Articles 52 et seq. and 73b et seq. of the EC Treaty
oblige a Member State which has concluded with another
country, whether or not a member of the European Union,
a convention including a clause prohibiting discrimination
in the field of taxation to accord a legal person having its
effective centre of management in the territory of another
Member State the same benefits as those provided for by
that clause, when that legal person owns one or several
properties in the territory of the first Member State and the
second Member State is not linked to the first by an equiva-
lent clause?

(1) Council Directive 77/799 EEC of 19 December 1977 concerning
the Member

mutual assistance by the competent authorities of
States in the field of direct taxation (OJ 1977 L 336, p. 15).