Case C-194/06: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on  26 April 2006  — Staatssecretaris van Financiën v Orange European Smallcap Fund NV
Date: 2006-07-29
Institutions: Court of Justice
Subjects: direct investment, free movement of capital, interpretation of the law, investment company, shareholder, tax convention, tax on investment income, tax system

29.7.2006

EN

Official Journal of the European Union

C 178/15

Order of the Court (Fourth Chamber) of 6 April 2006
(reference for a preliminary ruling from the Hof van
Cassatie van België — Belgium) — Reyniers & Sogama
en Restitutiebureau,
BVBA v Belgisch Interventie-

Operative part of the order

Belgische Staat

(Case C-407/05) (1)

(Reference for a preliminary ruling — First subparagraph of
Article 104(3) of the Rules of Procedure — Recovery of
import rights — Proof of the regularity of the operation or
of the place of the offence or irregularity — Consequence of
the lack of notification to the principal of the period for
furnishing such proof)

(2006/C 178/24)

Language of the case: Dutch

National court

Article 36(2 of Council Regulation (EEC) No 222/77 of 13
December 1976 on Community transit, as amended by Council
Regulation (EEC) No 474/90 of 22 February 1990, with a view to
abolishing lodgement of the transit advice note on crossing an internal
frontier of the Community, read in conjunction with Article 11a of
Commission Regulation (EEC) No 1062/87 of 27 March 1987 on
provisions for the implementation of the Community transit procedure
and for certain simplifications of
that procedure, as amended by
Commission Regulation (EEC) No 1429/90 of 29 May 1990, and
Article 34 of Council Regulation (EEC) No 2726/90 of 17
September 1990 on Community transit, read in conjunction with
Article 49 of Commission Regulation (EEC) No 1214/92 of 21
April 1992 on provisions for the implementation of the Community
transit procedure and for certain simplifications of that procedure,
must be interpreted as meaning that the office of departure must
notify to the declarer the period of three months in which proof of the
regularity of the transit operation or of the place where the offence or
the irregularity was actually committed may be furnished to that
office, to the satisfaction of the competent authorities, so that the
competent authority can proceed with recovery only after having
expressly indicated to the declarer that the latter has three months in
which to furnish that proof, and that that proof has not been furn-
ished within that period.

Hof van Cassatie van België

(1) OJ C 22 of 28.1.2006.

Parties

Applicant: Reyniers & Sogama BVBA

Defendant: Belgisch Interventie- en Restitutiebureau, Belgische
Staat

Reference for a preliminary ruling from the Hoge Raad
der Nederlanden lodged on 26 April 2006 — Staatssecre-
taris van Financiën v Orange European Smallcap Fund NV

Re:

Reference for a preliminary ruling — Hof van Cassatie van
België — Interpretation of Art. 11a of Commission Regulation
(EEC) No 1062/87 of 27 March 1987 on provisions for the
implementation of the Community transit procedure and for
certain simplifications of that procedure (OJ 1987 L 107, p. 1),
inserted by Art. 1 of Commission Regulation (EEC) No
1429/90 of 29 May 1990, amending Regulation (EEC) No
1062/87 (OJ 1990 L 137, p. 1), Art. 34 of Council Regulation
(EEC) No 2726/90 of 17 September 1990 on Community
transit (OJ 1990 L 262, p. 1) and Art. 49 of Commission Regu-
lation (EEC) No 1214/92 of 21 April 1992 on provisions for
the implementation of the Community transit procedure and
for certain simplifications of that procedure (OJ 1992 L 132, p.
1) — Recovery of import rights — Notification addressed, by
the office of departure, to the principal inviting him to furnish
the proof of the regularity of the operation or of the place of
the offence — Failure to notify time-limit — Consequences in
terms of the validity of the notification and the recovery of the
customs debt

(Case C-194/06)

(2006/C 178/25)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

C 178/16

EN

Official Journal of the European Union

29.7.2006

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: Orange European Smallcap Fund NV

Question(s) referred

1. Must Article 56 EC, in conjunction with Article 58(1) EC,
be interpreted as meaning that the prohibition in Article 56
EC is incompatible with a rule in a Member State under
which — for the reasons set out in at the end of section
5.2.1 of this judgment — a concession to be granted to a
fiscal investment enterprise on account of taxation at source
deducted in another Member State from dividends received
by the fiscal investment enterprise is restricted:

(a) to the amount which a natural person resident in the
Netherlands could have had credited on the basis of a
tax treaty concluded with the other Member State;

(b) where and to the extent to which the shareholders of
the fiscal investment enterprise are not natural persons
resident in the Netherlands or bodies subject to Nether-
lands corporation tax?

2. If the answer to Question 1 is wholly or partly in the affir-

mative:

(a) Does ‘direct investment’ in Article 57(1) EC also include
the holding of a block of shares in a company if the
holder of the shares holds them only as an investment
and the size of the block does not put the holder in a
position to exercise a decisive influence over
the
management or control of the company?

(b) Under Article 56 EC, is any restriction of the movement
of capital connected with the levying of tax that would
be impermissible if it related to cross-border movement
of capital within the EC similarly impermissible in the
case of the same movement of capital — in otherwise
similar circumstances — to and from third countries?

(c) If the answer to Question 2(b) is in the negative, must
Article 56 EC then be interpreted as meaning that a
restriction by a Member State of a tax concession
granted to a fiscal investment enterprise with regard to
taxation at source of a dividend received from a third
country, that restriction being based on the fact that not
all shareholders of the fiscal investment enterprise have
their place of residence in the Member State concerned,
is incompatible with that article?

3. Is the answer to the above questions affected by whether:

(a) the tax deducted in another country from the dividend
received from that country is higher than the tax on the
payment of that dividend to foreign shareholders in the

Member State of establishment of the fiscal investment
enterprise;

(b) the shareholders of the fiscal investment enterprise who
have their place of residence outside the Member State
of establishment of the fiscal investment enterprise are
resident or established in a country with which the
above-mentioned Member State has a treaty providing
for reciprocal credit of taxation of dividends at source;

(c) the shareholders of the fiscal investment enterprise who
have their place of residence outside the Member State
of establishment of the fiscal investment enterprise are
resident or established in another country of the EC?

Reference for a preliminary ruling from the Bundeskom-
munikationssenats (Austria) lodged on 27 April 2006 —
Österreichischer Rundfunk (ORF)

(Case C-195/06)

(2006/C 178/26)

Language of the case: German

Referring court

Bundeskommunikationssenats (Austria)

Party to the main proceedings

Österreichischer Rundfunk (ORF)

Questions referred

1. Should Article 1(f) of Council Directive 89/552/EEC (1) of 3
October 1989 on the coordination of certain provisions laid
down by law, regulation or administrative action in Member
States concerning the pursuit of
television broadcasting
in the version of Directive 97/36/EC (2) of the
activities,
European Parliament and of the Council of 30 June 1997
amending Council Directive 89/552/EEC on the coordina-
tion of certain provisions laid down by law, regulation or
administrative action in Member States concerning the
pursuit of television broadcasting activities be interpreted to
the effect that ‘teleshopping’ includes broadcasts or parts of
broadcasts in which the broadcaster offers viewers the
opportunity to participate in the broadcaster's prize games
by means of immediately dialling premium rate telephone
numbers, and thus in return for payment?