Joined Cases C-181/04 to C-183/04: Judgment of the Court (Second Chamber) of 14 September 2006 (references for a preliminary ruling from the Simvoulio tis Epikratias — Greece) — Elmeka NE v Ipourgos Ikonomikon (Sixth VAT Directive — Exemptions — Article 15(4)(a), (5) and (8) — Exemption for the chartering of sea-going vessels — Scope)
Date: 2006-11-18
Institutions: Court of Justice
Subjects: VAT, chartering, international waters, interpretation of the law, maritime transport, provision of services, tax exemption, tax system

C 281/4

EN

Official Journal of the European Union

18.11.2006

Judgment of the Court (First Chamber) of 21 September
2006 — Commission of the European Communities v
Republic of Austria

Judgment of the Court (Second Chamber) of 14 September
2006 (references
for a preliminary ruling from the
Simvoulio tis Epikratias — Greece) — Elmeka NE v
Ipourgos Ikonomikon

(Case C-168/04) (1)

(Failure of a Member State to fulfil obligations — Article 49
EC — Freedom to provide services — Undertaking employing
workers who are not nationals of a Member State — Under-
taking providing services in another Member State — ‘EU
Posting Confirmation’)

(Joined Cases C-181/04 to C-183/04) (1)

(Sixth VAT Directive — Exemptions — Article 15(4)(a), (5)
and (8) — Exemption for the chartering of sea-going vessels
— Scope)

(2006/C 281/06)

Language of the case: German

(2006/C 281/07)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Eggers, E. Traversa and G. Braun, Agents)

Referring court

Defendant: Republic of Austria (represented by: E. Riedl,
C. Pesendorfer and G. Hesse)

Simvoulio tis Epikratias

Re:

Failure of a Member State to fulfil obligations — Article 49 EC
— Posting of workers who are third-country nationals in
connection with the provision of services by undertakings
established in another Member State conditional on a system of
acknowledgement of receipt which is a de facto system of
authorisation in so far as absence of such an acknowledgement
results in fines and refusal of entry and residence for the posted
workers concerned.

Operative part of the judgment

The Court:

1. Declares that, by making the posting of workers who are nationals
of non-Member States by an undertaking established in another
Member State subject to obtaining the ‘EU Posting Confirmation’
provided for in Paragraph 18(12) of the Austrian Law on the
employment of
foreign workers (Ausländerbeschäftigungsgesetz),
the issue of which requires, first, that the workers concerned must
have been employed for at least one year by that undertaking or
must have concluded an employment contract of indefinite dura-
tion with it and, secondly, evidence that the Austrian employment
and wage conditions are complied with, and by laying down in
Paragraph 10(1)(3) of
the Law on aliens (Fremdengesetz) a
ground for the automatic refusal of an entry and residence permit,
without exception, which does not allow the situation of workers
lawfully posted by an undertaking
from a non-Member State,
established in another Member State, to be regularised when those
workers have entered the national territory without a visa, the
Republic of Austria has failed to fulfil its obligations under Article
49 EC.

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

(1) OJ C 146, 29.05.2004.

Parties to the main proceedings

Applicant: Elmeka NE

Defendant: Ipourgos Ikonomikon

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias
— Interpretation of Article 15(4), (5) and (8) of Sixth Council
Directive (77/388/EEC) of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — Exemptions — Exemption for
the chartering of sea-going vessels — Scope

Operative part of the judgment

The Court hereby rules:

1. Article 15(4)(a) of Sixth Council Directive 77/388/EEC of 17
May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment, to which Article 15(5) of
that
by Council Directive
92/111/EEC of 14 December 1992, applies not only to vessels
used on the high seas for the carriage of passengers for reward,
but also to vessels used on the high seas for the purpose of
commercial, industrial or fishing activity.

amended

directive

refers,

as

2. Article 15(8) of the Sixth Directive (77/388) is to be interpreted
as meaning that the exemption provided for therein applies to the
supply of services directly to the shipowner for the direct needs of
sea-going vessels.

18.11.2006

EN

Official Journal of the European Union

C 281/5

3. In the framework of

the common system of value added tax,
national tax authorities are obliged to respect the principle of
protection of legitimate expectations. It falls to the referring court
to decide whether, in the circumstances of the main proceedings,
the taxable person could reasonably have believed that the decision
in question had been taken by a competent authority.

(1) OJ C 168, 26. 6. 2004.
OJ C 201, 07. 8. 2004.

Member State of profits made by a controlled foreign company in
another Member State, where those profits are subject in that State to
a lower level of taxation than that applicable in the first State, unless
such inclusion relates only to wholly artificial arrangements intended
to escape the national tax normally payable. Accordingly, such a tax
measure must not be applied where it is proven, on the basis of objec-
tive factors which are ascertainable by third parties, that despite the
existence of tax motives that controlled company is actually established
in the host Member State and carries on genuine economic activities
there.

(1) OJ C 168, 26. 6. 2004.

Judgment of the Court (Grand Chamber) of 12 September
2006 (reference for a preliminary ruling from the Special
Commissioners, London — United Kingdom) — Cadbury
Schweppes plc, Cadbury Schweppes Overseas Ltd v
Commissioners of Inland Revenue

(Case C-196/04) (1)

(Freedom of establishment — Law on controlled foreign
companies — Inclusion of the profits of controlled foreign
companies in the tax base of the parent company)

(2006/C 281/08)

Language of the case: English

Referring court

Special Commissioners, London

Parties to the main proceedings

Applicants: Cadbury Schweppes plc, Cadbury Schweppes Over-
seas Ltd

Defendant: Commissioners of Inland Revenue

Re:

Preliminary ruling — Special Commissioners, London —
National legislation attributing to a parent company the profits
of a subsidiary resident in another Member State which has a
lower rate of taxation — Obligation of the parent company to
pay a charge in order to off set the difference between the two
rates of taxation — Whether compatible with Articles 43 EC,
49 EC and 56 EC

Operative part of the judgment

Articles 43 EC and 48 EC must be interpreted as precluding the
inclusion in the tax base of a resident company established in a

Judgment of the Court (Grand Chamber) of 12 September
2006 (reference for a preliminary ruling from the Raad
van State (Netherlands)) — M.G. Eman, O.B. Sevinger v
College van burgemeester en wethouders van Den Haag

(Case C-300/04) (1)

(European Parliament — Elections — Right
to vote —
Requirements of residence in the Netherlands for Netherlands
citizens of Aruba — Citizenship of the Union)

(2006/C 281/09)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

Parties to the main proceedings

Applicants: M.G. Eman, O.B. Sevinger

Defendant: College van burgemeester en wethouders van Den
Haag

Re:

Reference for a preliminary ruling — Netherlands Raad van
State — Interpretation of Articles 17 EC and 19 EC,
in
conjunction with Articles 189 EC, 190 EC and 299 EC —
Application of the provisions on citizenship of the Union to
residents of the overseas countries and territories — Right of
residents of the Netherlands Antilles and Aruba to vote in elec-
tions to the European Parliament subject to a requirement of
ten years' residence in the Netherlands