Case C-284/06: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 29 June 2006 — Finanzamt Hamburg-Am Tierpark v Burda Verlagsbeteiligungen GmbH
Date: 2006-09-30
Institutions: Court of Justice
Subjects: company with share capital, corporation tax, interpretation of the law, parent company, subsidiary, tax on profits of self-employment, tax system

C 237/2

EN

Official Journal of the European Union

30.9.2006

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt, within the prescribed period, all
the laws, regulations and administrative provisions necessary to
comply with Directive 2001/19/EC of the European Parliament
and of the Council of 14 May 2001 amending Council Directives
89/48/EEC and 92/51/EEC on the general system for the recog-
nition of professional qualifications and Council Directives
77/452/EEC,
78/687/EEC,
78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC,
85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC
concerning the professions of nurse responsible for general care,
dental practitioner, veterinary surgeon, midwife, architect, pharma-
cist and doctor, the Republic of Austria has failed to fulfil its obli-
gations under that directive;

78/686/EEC,

77/453/EEC,

2. Orders the Republic of Austria to pay the costs.

(1) OJ C 205, 20.08.2005.

Action brought on 6 June 2006 — Commission of the
European Communities v Federal Republic of Germany

informing the Commission thereof, the Federal Republic of
Germany has failed to fulfil its obligations under Article 6
of that directive;

— order the Federal Republic of Germany to pay the costs of

the proceedings.

Pleas in law and main arguments

The period laid down for implementing the directive expired
on 25 June 2005.

(1) OJ 2003 L 156, p. 17.

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 29 June 2006 — Finanzamt
Hamburg-Am Tierpark v Burda Verlagsbeteiligungen
GmbH

(Case C-284/06)

(2006/C 237/04)

Language of the case: German

(Case C-253/06)

(2006/C 237/03)

Language of the case: German

Referring court

Bundesfinanzhof

Parties

Applicant: Commission of the European Communities (repre-
sented by: F. Simonetti and B. Schima, acting as Agents)

Defendant: Federal Republic of Germany

Parties to the main proceedings

Appellant: Finanzamt Hamburg-Am Tierpark

Respondent: Burda Verlagsbeteiligungen GmbH

Questions referred

Forms of order sought

The applicant claims that the Court should:

— declare that, by not bringing into force the laws, regulations
and administrative provisions necessary to implement
Directive 2003/35/EC (1) of the European Parliament and of
the Council of 26 May 2003 providing for public participa-
tion in respect of the drawing up of certain plans and
programmes relating to the environment and amending
with regard to public participation and access to justice
Council Directives 85/337/EEC and 96/61/EC, or by not

1. Is there withholding tax within the meaning of Article 5(1)
of Council Directive 90/435/EEC (1) of 23 July 1990 on the
common system of taxation applicable in the case of parent
companies and subsidiaries of different Member States (OJ
1990 L 225, p. 6, …, now Article 5 as amended by Direc-
tive 2003/123/EC of 22 December 2003, OJ 2004 L 7,
p. 41)
law provides that,
where profits are distributed by a subsidiary to its parent
capital
company,
company are taxed which, under national law, would not be
taxed if they remained with the subsidiary and were not
distributed to the parent company?

in the case in which national

income and asset

increases of

the

30.9.2006

EN

Official Journal of the European Union

C 237/3

2. Should Question 1 be answered in the negative: is it compa-
tible with Articles 73b and 73d of the EC Treaty (now Arti-
cles 56 EC and 58 EC respectively) and with Article 52 of
the EC Treaty (now Article 43 EC) for a national rule to
provide for divergent set-off arrangements for the distribu-
tion of profits by a capital company using portions of its
own capital, resulting in consequent tax liability even in
cases in which the capital company demonstrates that it has
distributed dividends to non-resident shareholders, even
though, under national law, such non-resident shareholders,
unlike resident shareholders, are not entitled to set off
against their own tax the corporation tax thus determined?

(1) OJ L 225, p. 6.

2. Is Article 24(2)(a) of Regulation (EC) No 753/2002 to be
interpreted as meaning that imitation or evocation exists
only if it is in the same language as that of the protected
traditional term?

3. Is Article 24(2) of Regulation (EC) No 753/2002 to be inter-
preted as meaning that the traditional terms listed in Annex
III are protected only with regard to wines from the same
producer Member State as the protected traditional term?

(1) OJ 1999 L 179, p. 1
(2) OJ 2002 L 118, p. 1

Reference for a preliminary ruling from the Bundesver-
waltungsgericht (Germany) lodged on 3 July 2006 — Hein-
rich Stefan Schneider v Land Rheinland-Pfalz

(Case C-285/06)

(2006/C 237/05)

Language of the case: German

Reference for a preliminary ruling from the Finanzgericht
Hamburg (Germany) lodged on 3 July 2006 — Deutsche
für Großunternehmen in
Shell GmbH v Finanzamt

Hamburg

(Case C-293/06)

(2006/C 237/06)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Heinrich Stefan Schneider

Defendant: Land Rheinland-Pfalz

Questions referred

1. Is Article 47(2)(b)

and (c) of Regulation (EC) No
1493/1999 (1) in conjunction with the fifth indent of point
(B)(1)(b) and point (B)(3) of Annex VII to that regulation and
Article 23 of Regulation (EC) No 753/2002 to be inter-
preted as meaning that a particular which refers to the
production or ageing method or the quality of the wine is
permitted only as a regulated ‘optional particular’ in accord-
ance with the fifth indent of point (B)(1)(b) of Annex VII to
Regulation (EC) No 1493/1999 under
the conditions
provided for therein and in Article 23 of Regulation (EC) No
753/2002 (2), and not as an ‘other particular’ in accordance
with point
to Regulation (EC) No
1493/1999?

(B)(3) of Annex VII

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Deutsche Shell GmbH

Defendant: Finanzamt für Großunternehmen in Hamburg

Questions referred

1. Is it contrary to Article 52, in conjunction with Article 58,
of the EC Treaty (now Article 43 EC, in conjunction with
Article 48 EC) for the Federal Republic of Germany, as the
State of origin, to treat a currency loss of a German control-
ling company resulting from the repatriation of so-called
start-up capital granted to an Italian establishment as being
part of that establishment's profits and to exclude that loss,
on the basis of the exemption under Articles 3(1), 3(3) and
11.1(c) of the 1925 Double Taxation Convention between
Germany and Italy,
for
German tax, even though the currency loss cannot form
to be assessed for
part of
purposes of taxation in Italy and thus cannot be taken into
account in either the State of origin or in the State in which
the establishment is situate?

from the basis of assessment

the establishment's profits