Case C-290/04: Judgment of the Court (Grand Chamber) of 3 October 2006 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — FKP Scorpio Konzertproduktionen GmbH v Finanzamt Hamburg-Eimsbüttel (Article 59 of the EEC Treaty (later Article 59 of the EC Treaty, now, after amendment, Article 49 EC) and Article 60 of the EEC Treaty (later Article 60 of the EC Treaty, now Article 50 EC) — Tax legislation — Income tax — Provision of services by a non-resident in the context of artistic performances — Principle of retention of tax at source — Provider of services not possessing the nationality of a Member State)
Date: 2006-12-02
Institutions: Court of Justice
Subjects: Germany, Netherlands, claim, debt, deduction at source, double taxation, interpretation of the law, tax exemption, tax on income, tax relief

2.12.2006

EN

Official Journal of the European Union

C 294/7

Operative part of the judgment

1. By maintaining in the statutes of KPN NV and TPG NV certain
provisions, providing that the capital of those companies is to
include a special share held by the Netherlands State, which
confers on the latter special rights to approve certain management
decisions of the organs of those companies, which are not limited
to cases where the intervention of that State is necessary for over-
riding reasons in the general interest recognised by the Court and,
in the case of TPG NV in particular for ensuring the maintenance
of universal postal service, the Kingdom of the Netherlands has
failed to fulfil its obligations under Article 56(1) EC.

2. The Kingdom of the Netherlands is ordered to pay the costs.

(1) OJ C 217 of 28.08.2004

Judgment of the Court (Grand Chamber) of 3 October
2006 (reference for a preliminary ruling from the Bundes-
(Germany)) — FKP Scorpio Konzertproduk-
finanzhof

tionen GmbH v Finanzamt Hamburg-Eimsbüttel

(Case C-290/04) (1)

(Article 59 of the EEC Treaty (later Article 59 of the EC
Treaty, now, after amendment, Article 49 EC) and Article 60
of the EEC Treaty (later Article 60 of the EC Treaty, now
Article 50 EC) — Tax legislation — Income tax — Provision
of services by a non-resident in the context of artistic perfor-
mances — Principle of retention of tax at source — Provider
of services not possessing the nationality of a Member State)

(2006/C 294/11)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: FKP Scorpio Konzertproduktionen GmbH

Defendant: Finanzamt Hamburg-Eimsbüttel

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
pretation of Article 59 of the EC Treaty (now, after amend-

ment, Article 49 EC) and Article 60 of the EC Treaty (now
Article 50 EC) — National income tax legislation under which
a resident recipient of a service is obliged to deduct tax on
remuneration paid to a non-resident provider of services

Operative part of the judgment

1) Articles 59 and 60 of the EEC Treaty must be interpreted as not

precluding

— national legislation under which a procedure of retention of
tax at source is applied to payments made to providers of
services not resident in the Member State in which the services
are provided, whereas payments made to providers of services
resident in that Member State are not subject to such a reten-
tion;

— national legislation under which liability is incurred by a reci-
pient of services who has failed to make the retention at source
that he was required to make.

2) Articles 59 and 60 of the EEC Treaty must be interpreted as

— precluding national legislation which does not allow a reci-
pient of services who is the debtor of the payment made to a
non-resident provider of services to deduct, when making the
retention of tax at source, the business expenses which that
service provider has reported to him and which are directly
linked to his activity in the Member State in which the services
are provided, whereas a provider of services residing in that
State is taxable only on his net income, that is, the income
received after deduction of business expense;

— not precluding national legislation under which only the busi-
ness expenses directly linked to the activity that generated the
taxable income in the Member State in which the service is
provided, which the service provider established in another
Member State has
reported to the payment debtor, are
deducted in the procedure for retention at source, and expenses
that are not directly linked to that economic activity can be
taken into account if appropriate in a subsequent refund proce-
dure;

— not precluding a rule that the tax exemption granted under
the Convention of 16 June 1959 between the Federal Republic
of Germany and the Kingdom of
the Netherlands for the
avoidance of double taxation in the area of income, capital,
and various other taxes and for regulating other tax matters,
to a non-resident provider of services who has carried on
activity in Germany can be taken into account by the payment
debtor in the procedure for retention of tax at source, or in a
subsequent procedure for exemption or refund, or in proceed-
ings for liability brought against him, only if a certificate of
exemption stating that the conditions laid down to that end
by that convention are satisfied is issued by the competent tax
authority.

C 294/8

EN

Official Journal of the European Union

2.12.2006

3) Article 59 of the EEC Treaty must be interpreted as not being
applicable in favour of a provider of services who is a national of
a non-member country.

(1) OJ C 228, 11.09.2004.

Judgment of the Court (First Chamber) of 5 October 2006
— Commission of the European Communities v Kingdom
of the Netherlands

(Case C-312/04) (1)

(Failure of a Member State to fulfil obligations — Commu-
nities' own resources — Undischarged TIR carnets — Proce-
dures for collecting import duties — Non-compliance —
Failure to transfer the related own resources and to pay
default interest)

Judgment of the Court (Third Chamber) of 5 October
2006 (reference for a preliminary ruling from the Verwal-
tungsgerichtshof — Austria) — Transalpine Ölleitung in
Österreich GmbH, Planai-Hochwurzen-Bahnen GmbH,
Gerlitzen-Kanzelbahn-Touristik GmbH & Co KG v Finan-
Finanzlandesdirektion für
zlandesdirektion für Tirol,

Steiermark, Finanzlandesdirektion für Kärnten

(Case C-368/04) (1)

(State aid — Last sentence of Article 88(3) EC — Partial
rebate on energy taxes — Failure to give notice of the aid —
Commission decision — Declaration of the compatibility of
the aid with the common market in respect of a particular
period in the past — Effect on rebate applications made by
undertakings not benefiting from the aid — Powers of
national courts and tribunals)

(2006/C 294/13)

Language of the case: German

(2006/C 294/12)

Language of the case: Dutch

Referring court

Verwaltungsgerichtshof

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Wilms and A. Weimar, Agents)

Defendant: Kingdom of the Netherlands (represented by: H.G.
Sevenster and J.G.M. van Bakel, Agents)

Re:

Failure of a Member State to fulfil obligations — Articles 2(1),
6(2), 10(1) and 11 of Council Regulation (EEC, Euratom) No
1552/89 of 29 May 1989 implementing Decision 88/376/EEC,
Euratom, on the system of the Communities' own resources (OJ
1989 L 155, p. 1) — Failure to initiate, within the period
prescribed, procedures for the collection of customs duties
further to irregularities in the transport of goods covered by
TIR carnets — Failure to transmit, within the period prescribed,
the related own resources and to pay the default interest

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs.

(1) OJ C 228, 11.09.2004.

Parties to the main proceedings

Applicants: Transalpine Ölleitung in Österreich GmbH, Planai-
Hochwurzen-Bahnen GmbH, Gerlitzen-Kanzelbahn-Touristik
GmbH & Co KG

Defendants: Finanzlandesdirektion für Tirol, Finanzlandesdirek-
tion für Steiermark, Finanzlandesdirektion für Kärnten

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof
(Austria) — Interpretation of Article 88(3) EC — State aid
granted in breach of the prohibition on implementing aid prior
to the Commission's decision — Aid consisting in the partial
reimbursement of energy tax solely to businesses manufac-
turing goods — Effects of the Commission's subsequent deci-
sion declaring the aid compatible with the common market

Operative part of the judgment

1. The last sentence of Article 88(3) EC must be interpreted as
meaning that it is for the national courts to safeguard the rights
of individuals against possible disregard, by the national authori-
ties, of
the prohibition on putting aid into effect before the
Commission of the European Communities has adopted a decision
authorising that aid. In doing so, the national court must take the
Community interest fully into consideration and must not adopt a
measure which would have the sole effect of extending the circle of
recipients of the aid.