Case C-471/04: Judgment of the Court (First Chamber) of  23 February 2006  (reference for a preliminary ruling from the Bundesfinanzhof) — Finanzamt Offenbach am Main-Land v Keller Holding GmbH (Freedom of establishment — Corporation tax — Right of a parent company to deduct costs relating to its shareholdings — Non-deductible financing costs having an economic link with dividends exempt from tax — Dividends distributed by an indirect subsidiary established in a Member State other than that in which the parent company has its seat)
Date: 2006-06-03
Institutions: Court of Justice
Subjects: EU Member State, financing, head office, interpretation of the law, profit, provision of services, shareholding, tax exemption, tax system

C 131/20

EN

Official Journal of the European Union

3.6.2006

Operative part of the judgment

Re:

1. Article 19 of Council Directive 86/653/EEC of 18 December
1986 on the coordination of the laws of
the Member States
relating to self-employed commercial agents must be interpreted as
meaning that the indemnity for termination of contract which
results from the application of Article 17(2) of
the directive
cannot be replaced, pursuant to a collective agreement, by an
indemnity determined in accordance with criteria other than those
prescribed by Article 17, unless it is established that the applica-
tion of such an agreement guarantees the commercial agent, in
every case, an indemnity equal to or greater than that which
results from the application of Article 17.

2. Within the framework prescribed by Article 17(2) of Directive
86/653, the Member States enjoy a margin of discretion which
in relation to the criterion of
they may exercise,
equity.

in particular,

(1) OJ C 31 of 05.02.2005.

Judgment of the Court (First Chamber) of 23 February
2006 (reference for a preliminary ruling from the Bundes-
finanzhof) — Finanzamt Offenbach am Main-Land v Keller
Holding GmbH

Preliminary ruling — Bundesfinanzhof — Interpretation of
Article 52 of the EC Treaty (now, after amendment, Article
43 EC), Article 58 and Article 73b of the EC Treaty (now
Article 48EC and 56 EC) — Corporation tax — Non-deduct-
ibility of expenditure having a direct economic link to tax-free
profits — Expenditure incurred by a parent company estab-
lished in a Member State linked to its shareholding in a
subsidiary established in the same Member State, in connection
with dividends distributed by a second-tier subsidiary which are
exempted from tax by virtue of
this latter
company is established in another Member State

the fact

that

Operative part of the judgment

Article 52 of the EC Treaty (now, after amendment, Article 43 EC)
and Article 31 of the Agreement on the European Economic Area of
2 May 1992 must be interpreted as precluding legislation of a
Member State which excludes the possibility of deducting for tax
purposes financing costs incurred by a parent company subject to
unlimited tax liability in that State in order to acquire holdings in a
subsidiary where those costs relate to dividends which are exempt from
tax because they are derived from an indirect subsidiary established in
another Member State or in a State which is party to the Agreement,
whereas such costs may be deducted where they relate to dividends
paid by an indirect subsidiary established in the same Member State
as that of the place of the registered office of the parent company and
which, in reality, also benefit from a tax exemption.

(Case C-471/04) (1)

(1) OJ C 19, 22.01.2005.

(Freedom of establishment — Corporation tax — Right of a
parent company to deduct costs relating to its shareholdings
— Non-deductible financing costs having an economic link
with dividends exempt from tax — Dividends distributed by
an indirect subsidiary established in a Member State other
than that in which the parent company has its seat)

(2006/C 131/35)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Judgment of the Court (Second Chamber) of 23 February
2006 (reference for a preliminary ruling from the VAT
and Duties Tribunal, Manchester) — Dolland & Aitchison
Ltd v Commissioners of Customs & Excise

(Case C-491/04) (1)

(Community Customs Code — Customs value — Customs
import duties — Delivery of goods by a company established
in Jersey and supplies of services effected in the United
Kingdom)

(2006/C 131/36)

Language of the case: English

Applicant: Finanzamt Offenbach am Main-Land

Referring court

Defendant: Keller Holding GmbH

VAT and Duties Tribunal, Manchester