Case C-383/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening v Minister van Sociale Zaken en Werkgelegenheid
Date: 2006-12-16
Institutions: Court of Justice
Subjects: European Investment Bank, Structural Funds, application of EU law, balance of payments assistance, competence of the Member States, coordination of financing, interpretation of the law, redemption

16.12.2006

EN

Official Journal of the European Union

C 310/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

Reference for a preliminary ruling from the Corte
Suprema di Cassazione (Italy) lodged on 20 March 2006 —
Ministero dell'Economia e delle Finanze and Agenzia delle
Entrate v Porto Antico di Genova SPA

(Case C-149/06)

(2006/C 310/01)

Language of the case: Italian

Referring court

The Corte Suprema di Cassazione

Parties to the main proceedings

Reference for a preliminary ruling from the Finanzgericht
Hamburg lodged on 5 September 2006 — Heinrich Bauer
für Großunter-
Verlag BeteiligungsGmbH v Finanzamt

nehmen in Hamburg

(Case C-360/06)

(2006/C 310/02)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Heinrich Bauer Verlag BeteiligungsGmbH

Defendant: Finanzamt für Großunternehmen in Hamburg

Appellants: Ministero dell'Economia e delle Finanze and Agenzia
delle Entrate

Question referred

Respondant: Porto Antico di Genova SPA

Questions referred

1. Must the second sentence of Article 21(3) of Regulation
(EEC) No 4253/88, as amended by Regulation (EEC) No
2082/93 (1), under which payments of funds to final benefi-
ciaries are to be made without any deduction or retention
which could reduce the final amount of financial assistance
to which they are entitled, be interpreted as meaning that
such funds cannot be taken into account even for the
purposes of determining income tax or any other tax subse-
quently owing by the beneficiaries under national tax legis-
lation?

2. If the answer to the first question is 'yes': does that exemp-
tion scheme apply solely to the part of the funds payable by
Community bodies or also to the part granted, in the course
of the same development programme, by national, regional
or local authorities?

(1) OJ L 193, p. 20.

it

Is
incompatible with Article 52 in conjunction with
Article 58 of the EEC Treaty (now Article 43 in conjunction
with Article 48 EC) that, when unlisted shares in a capital
company are valued, a financial interest in a German partner-
ship is given a lower value than a financial interest in a partner-
ship established in another Member State?

Reference for a preliminary ruling from the Raad van
State (Netherlands) lodged on 18 September 2006 — Vere-
niging Nationaal Overlegorgaan Sociale Werkvoorziening
v Minister van Sociale Zaken en Werkgelegenheid

(Case C-383/06)

(2006/C 310/03)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

C 310/2

EN

Official Journal of the European Union

16.12.2006

Parties to the main proceedings

Applicant: Vereniging Nationaal Overlegorgaan Sociale Werk-
voorziening

Defendant: Minister van Sociale Zaken en Werkgelegenheid

Reference for a preliminary ruling from the Raad van
State (Netherlands)
lodged on 18 September 2006 —
Gemeente Rotterdam v Minister van Sociale Zaken en
Werkgelegenheid

(Case C-384/06)

(2006/C 310/04)

Language of the case: Dutch

Question(s) referred

1. a) Can a Member State or an administrative authority of
is to say

that State derive a power directly — that
without a basis in national law — from a regulation?

Referring court

b) If so, does Article 23(1) of Regulation No 4253/88 (1) of
19 December 1988 laying down provisions for imple-
menting Regulation No 2052/88 as regards coordination
of the activities of the different Structural Funds between
themselves and with the operations of
the European
Investment Bank and the other existing financial instru-
ments, as amended by Regulation No 2082/93 (‘the
the power, having
coordination regulation’), confer
regard to the fixing of the subsidy, to recover amounts
of subsidy unduly paid, on the basis that Article 23 of
the coordination regulation requires the Member States
to do so where there is irregularity or negligence within
the meaning of that article?

2. If not, does Article 10 EC, read in conjunction with Article
249 thereof, mean that a national provision such as Article
4.57 of the Algemene Wet Bestuursrecht (General Law on
Administrative Law) — under which amounts of subsidy or
advances unduly paid may be recovered — must be inter-
preted in conformity with the regulation?

3. If so, is that interpretation limited by general legal principles
which form part of Community law, in particular the princi-
ples of legal certainty and the protection of legitimate expec-
tations?

4. a) If the answer to the third question is in the affirmative,
the question arises in relation to that limitation whether
national principles of legal certainty and the protection
of legitimate expectations can be more far-reaching than
general principles of Community law, especially the prin-
ciples of legal certainty and the protection of legitimate
interests which are to be complied with when applying
the coordination regulation.

b) In applying the Community legal principles of

legal
certainty and legitimate expectations, is it of significance
that
the Member State granting the subsidy is itself
responsible for the fact that the subsidy recipient has
failed to fulfil the subsidy obligations which flow from
the relevant part of Community law?

(1) OJ L 374, p. 1.

Raad van State (Netherlands)

Parties to the main proceedings

Applicant: Gemeente Rotterdam

Defendant: Minister van Sociale Zaken en Werkgelegenheid

Question(s) referred

1. a) Can the Member State or one of its authorities derive a
competence directly from a regulation — without a basis
in national law?

the activities of

b) If so, does Article 23(1) of Council Regulation (EEC) No
4253/88 (1) of 19 December 1988, laying down provi-
sions for implementing Regulation (EEC) No 2052/88 as
regards coordination of
the different
Structural Funds between themselves and with the opera-
tions of the European Investment Bank and the other
existing financial
instruments, as amended by Council
Regulation No 2082/93 of 20 July 1993 ('the coordina-
tion regulation') confer authority to withdraw an order
on the granting of a subsidy and to claim back the sum
paid, on the basis that Article 23 of the coordination
regulation requires the Member State to do that in so far
as irregularities or negligence within the meaning of the
said Article 23 are involved?

2. If not, is a national legal provision like Article 4.49.1 of the
Algemene Wet Bestuursrecht (General Law on Administra-
tive Law), on the basis of which the authority may withdraw
the determination of the subsidy or amend it to the detri-
ment of the beneficiary if (a) there are facts or circumstances
of which it could not reasonably have been aware at the
time the subsidy was determined and which would have
resulted in a lower subsidy being determined than that in
the order on the granting of the subsidy, (b) the determin-
ation of the subsidy was made in error and the beneficiary
knew this or should have known it, or
the
the beneficiary has not
determination of
fulfilled the obligations attached thereto, to be interpreted,
pursuant to Article 10 EC in conjunction with Article 249
EC, in a manner that conforms to the regulation?

the subsidy,

(c) after