Case C-162/07: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 26 March 2007 — Ampliscientifica Srl, Amplifin SpA v Ministero dell'Economia e delle Finanze, Agenzia delle Entrate
Date: 2007-06-23
Institutions: Court of Justice
Subjects: VAT, approximation of laws, interpretation of the law, tax exemption, tax harmonisation

C 140/10

EN

Official Journal of the European Union

23.6.2007

Pleas in law and main arguments

The first paragraph of Article 43 guarantees all nationals of a
Member State the right of establishment in another Member
State in order to take up and pursue activities there as self-
employed persons, and to set up companies and manage under-
the
takings in another Member State. As an expression of
general prohibition of discrimination in Article 12 EC, Article
43 EC prohibits discrimination on grounds of nationality in the
field of self-employed persons. The requirement of equal treat-
ment with the nationals of the host State is expressed in the
second paragraph of Article 43. Under that provision, freedom
of establishment covers the right to take up and pursue activities
of any kind as self-employed persons and to set up and manage
undertakings, particularly companies,
in the territory of any
other Member State in accordance with the provisions laid
down by the host State for its own nationals.

the activity’. Under the Austrian legislation,

For the registration of a company established under Austrian
law on application by a citizen of one of the Member States of
the European Union which acceded on 1 May 2004 — with the
exception of Malta and Cyprus — the courts keeping the regis-
ters of companies in Austria require a determination of his self-
employed status. The distinction between self-employed and
non-self-employed workers depends on the ‘true economic content
of
in particular,
members of a partnership and members of a limited liability
company with a share of less than 25 % of the business who
perform work which is typically performed in an employment
relationship are regarded as non-self-employed workers. That
presumption applies until the regional office of the employment
market service determines, on application by the member, that
he exercises a significant influence on the management of the
business. Proof of self-employed status is to be provided by the
applicant. Until the determination of self-employed status by
decision, but for a maximum of three months, the persons
concerned cannot take up their activities.

This rule is not compatible with freedom of establishment
under Article 43 EC. It impedes self-employed persons from
eight new Member States in their freedom to become estab-
lished in Austria, by making it considerably difficult for them to
set up a company, without there being any justification for that.
Even if it is the case that the provision in question is only of
limited application, the rule does not thereby lose its discrimina-
the eight Member
tory character. Even though nationals of
States concerned do not always without exception have to make
an application, the decisive point is that Austrian citizens and
nationals of the other Member States never have to make such
the transitional provisions in the
an application. Moreover,
accession treaties provide for restrictions exclusively in respect
of the freedom of movement of workers. For freedom of estab-
lishment there are no such possible restrictions. That the ratio
legis of
the relevant provision is to prevent the transitional
provisions for the freedom of movement of workers from being
circumvented, rather than to restrict freedom of establishment,
does not alter the fact
it amounts to a restriction of
freedom of establishment.

that

Restrictions of freedom of establishment can, under Article 46
EC, be justified only on grounds of public policy, public security

restrictions of a fundamental

or public health or, in the case of measures that are not overtly
discriminatory, on other mandatory grounds in the public
interest. As
such
measures must in any event be suitable for achieving the aim
pursued and not go beyond what is necessary for that purpose.
The Austrian rule in question does not satisfy those require-
ments for justification.

freedom,

There is nothing to indicate that the evasion of the transitional
provisions by nationals of the eight Member States concerned
feared by the Austrian Government may reach such proportions
that the functioning of the Austrian labour market will in fact
be fundamentally threatened. In addition, the two criteria of
assessment of the type of employment — the kind of work
done and influence on the management of the company — are
not appropriate for distinguishing between employment and
self-employed activities. As regards the need for the restriction,
it is not apparent from the Austrian Government's explanation
why a subsequent check after registration of the company could
not, as a less severe means, also achieve the intended purpose.

Reference for a preliminary ruling from the Corte Suprema
di Cassazione (Italy) lodged on 26 March 2007 — Amplis-
cientifica Srl, Amplifin SpA v Ministero dell'Economia e
delle Finanze, Agenzia delle Entrate

(Case C-162/07)

(2007/C 140/17)

Language of the case: Italian

Referring court

La Corte Suprema di Cassazione

Parties to the main proceedings

Applicants: Ampliscientifica Srl, Amplifin SpA

Defendants: Ministero dell'Economia e delle Finanze, Agenzia
delle Entrate

Questions referred

1. Must the last paragraph of Article 4(4) of Council Directive
77/388/EEC (1) of 17 May 1977 be construed as a rule that
is insufficiently precise, with the effect
the Member
States are permitted to apply the VAT scheme set out in that
rule to specific situations involving economic, financial or
legal links among different persons, or as a rule that is suffi-
ciently precise and which, therefore, once a Member State
has decided to adopt that scheme, requires provision to be
made for it to be applied in all cases involving the links set
out in that rule?

that

23.6.2007

EN

Official Journal of the European Union

C 140/11

2. (i) Regardless of the reply to be given to question (1), is the
imposition of a temporal restriction — in the sense that the
link must have existed for a significant period of time — as
a precondition for the application of the scheme, where the
persons concerned are not permitted to demonstrate that
there is a valid economic reason for the link being forged,
disproportionate in relation to the objectives of the directive
and to the need for compliance with the principle prohi-
legislation to be
biting the abuse of rights? (ii)
regarded in any event as contrary to the principle of the
neutrality of VAT?

Is that

(1) OJ 1977 L 145, p. 1

graph 8 of the Gesetz über das Apothekenwesen — ApoG
— (Law on Pharmacies) of 15 October 1980 (BGBl. I, p.
1993), as amended most recently by Article 34 of the Regu-
lations of 31 October 2006 (BGBl. I, p. 2407)?

2. If the first question is answered in the affirmative:

Having regard in particular to Article 10 EC and to the prin-
is a national
ciple of effectiveness of Community law,
authority entitled and obliged to disapply national provisions
it regards as contrary to Community law even if there is no
clear breach of Community law and it has not been estab-
lished by the Court of Justice of the European Communities
that
the relevant provisions are incompatible with Com-
munity law?

Reference for a preliminary ruling from the Verwaltungs-
lodged on 30 March
gericht des Saarlandes (Germany)
2007 — Apothekerkammer des Saarlandes, Marion
Schneider, Michael Holzapfel, Dr Fritz Trennheuser and
Deutscher Apothekerverband e.V. v Saarland and Minis-
intervening
terium für Justiz, Gesundheit und Soziales,

party: DocMorris N.V.

Reference for a preliminary ruling from the Verwaltungs-
gericht des Saarlandes (Germany)
lodged on 30 March
2007 — Helga Neumann-Seiwert v Saarland and Minis-
intervening
terium für Justiz, Gesundheit und Soziales,

party: DocMorris N.V.

(Case C-171/07)

(2007/C 140/18)

Language of the case: German

Referring court

Verwaltungsgericht des Saarlandes

Parties to the main proceedings

(Case C-172/07)

(2007/C 140/19)

Language of the case: German

Referring court

Verwaltungsgericht des Saarlandes

Parties to the main proceedings

Claimant: Helga Neumann-Seiwert

Claimants: Apothekerkammer des Saarlandes, Marion Schneider,
Michael Holzapfel, Dr Fritz Trennheuser and Deutscher Apothe-
kerverband e.V.

Defendants: Saarland and Ministerium für Justiz, Gesundheit und
Soziales

Defendants: Saarland and Ministerium für Justiz, Gesundheit und
Soziales

Joined party: DocMorris N.V

Joined party: DocMorris N.V.

Questions referred

Questions referred

1. Are the provisions concerning freedom of establishment for
capital companies (Articles 43 and 48 EC) to be interpreted
as precluding a prohibition on foreign ownership of pharma-
cies, as provided for by Paragraph 2(1)(1) to (4) and (7), the
first sentence of Paragraph 7 and the first sentence of Para-

1. Are the provisions concerning freedom of establishment for
capital companies (Articles 43 and 48 EC) to be interpreted
as precluding a prohibition on foreign ownership of pharma-
cies, as provided for by Paragraph 2(1)(1) to (4) and (7), the
first sentence of Paragraph 7 and the first sentence of Para-
graph 8 of the Gesetz über das Apothekenwesen — ApoG
— (Law on Pharmacies) of 15 October 1980 (BGBl. I, p.
1993), as amended most recently by Article 34 of the Regu-
lations of 31 October 2006 (BGBl. I, p. 2407)?