Case C-415/06: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 11 October 2006 — Stahlwerk Ergste Westig GmbH v Finanzamt Düsseldorf-Mettmann
Date: 2006-12-30
Institutions: Court of Justice
Subjects: distribution business, double taxation, financial loss, interpretation of the law, tax on income, tax relief, tax system

C 326/26

EN

Official Journal of the European Union

30.12.2006

Pleas in law and main arguments

Question referred

The appellants make seven pleas on appeal:

First, that the Court of First Instance erred in law by using the
Commission's statement of objections as a benchmark for its
substantive assessment of the decision.

that

the Court of First

Second,
Instance erred in law by
requiring the Commission to conduct a new market investiga-
tion following the notifying parties' response to the statement of
objections.

Third, that the Court of First Instance erred in law by applying
an erroneous and excessively high standard of proof for merger
clearance decisions.

Fourth, that the Court if First Instance exceeded the scope of
judicial review by substituting its own assessment for that of the
Commission and, in doing so, itself committed manifest errors
and fundamentally misconstrued the evidence.

Fifth, that the Court of First Instance erred in law by misap-
plying the criteria developed in Airtours for the assessment of
the feasibility of tacit collusion.

Sixth, that the Court of First Instance erred in law by applying
an erroneous and excessive standard of reasoning for merger
clearance decisions.

Seventh, that the Court of First Instance erred in law by relying
on evidence that was not disclosed to the applicants and that
was not before the Commission at the time it adopted its deci-
sion.

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 11 October 2006 — Lidl
Belgium GmbH & Co. KG v Finanzamt Heilbronn

(Case C-414/06)

(2006/C 326/52)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Lidl Belgium GmbH & Co. KG

Defendant: Finanzamt Heilbronn

Is it compatible with Articles 43 EC and 56 EC for a German
company with income from industrial or commercial activities
to be precluded, when calculating its profits, from deducting
losses from a permanent establishment in another Member State
(here: Luxembourg) on the ground that, according to the applic-
able double taxation convention,
the corresponding income
from such a permanent establishment is not subject to taxation
in Germany?

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 11 October 2006 — Stahl-
werk Ergste Westig GmbH v Finanzamt Düsseldorf-Mett-
mann

(Case C-415/06)

(2006/C 326/53)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Stahlwerk Ergste Westig GmbH

Defendant: Finanzamt Düsseldorf-Mettmann

Questions referred

1. Is it compatible with Articles 56 EC and 58 EC for a
German company with income from industrial or commer-
cial activities to be precluded, when calculating its profits,
from deducting losses from a permanent establishment in a
non-member country (here: the United States) on the ground
that, according to the applicable double taxation convention,
the corresponding income from such a permanent establish-
ment is not subject to taxation in Germany?

2. Having regard to the proviso in Article 57(1) EC,

is a
convention provision with the above content compatible
with Community law if
the
double taxation convention already existed on 31 December
1993 but the exclusion of taking account of losses resulting
from those provisions had been removed up to 1998 by
domestic German law?

the applicable provisions of