Case C-309/07: Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany) lodged on 5 July 2007 — Firma Baumann GmbH v Land Hessen
Date: 2007-10-20
Institutions: Court of Justice
Subjects: additional duty, interpretation of the law, live animal, slaughter of animals, tax system, veterinary inspection

C 247/2

EN

Official Journal of the European Union

20.10.2007

V

(Announcements)

COURT PROCEEDINGS

COURT OF JUSTICE

a

for

Reference
from the
preliminary
Bundesfinanzhof (Germany) lodged on 14 June 2007 —
Ernst & Young Deutsche Allgemeine Treuhand AG v
Finanzamt Stuttgart-Körperschaften

ruling

Reference for a preliminary ruling from the Hessischer
Verwaltungsgerichtshof (Germany) lodged on 5 July 2007
— Firma Baumann GmbH v Land Hessen

(Case C-285/07)

(2007/C 247/02)

(Case C-309/07)

(2007/C 247/03)

Language of the case: German

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Referring court

Hessischer Verwaltungsgerichtshof

Applicant: Ernst & Young Deutsche Allgemeine Treuhand AG

Parties to the main proceedings

Defendant: Finanzamt Stuttgart-Körperschaften

Applicant: Firma Baumann GmbH

Questions referred

1. Does Article 8(1) and (2) of Council Directive 90/434/EEC
of 23 July 1990 (1) preclude the taxation rules of a Member
State under which, on the transfer of shares in one European
Union company limited by shares to another, the transferring
party may maintain the book value of the shares transferred
only if
itself valued the
shares transferred at their book value (‘double book value
carryover’)?

receiving company has

the

2. If the answer is in the negative: are the above rules contrary
to Articles 43 EC and 56 EC, even though the ‘double book
value carryover’ is required also on a transfer of shares in a
company limited by shares to one that is subject to unlimited
taxation?

(1) OJ 1990 L 225, p. 1.

Defendant: Land Hessen

Questions referred

1. Is a national

legislature, when availing itself of the power
laid down in Article 5(3) of Council Directive 85/73/EEC of
29 January 1985 in the version of Council Directive
96/43/EC of 26 June 1996 and in point 4(a) of Chapter I of
Annex A thereto to increase the standard amounts of fees for
individual establishments and in point 4(b) to collect a fee
which covers actual costs, strictly bound by the fee structure
laid down in points 1 and 2(a) of Chapter I of Annex A
(according to type of animal, young or adult animals, carcase
weight etc) or may it make a distinction, when setting the
amounts of scales of fees, between inspections of slaugh-
tering units in large establishments and other inspections
and, in addition, also within those two groups adjust the rate
of fees on a diminishing scale according to the number of
animals slaughtered within the animal types, provided only
that that reflects the actual costs?

20.10.2007

EN

Official Journal of the European Union

C 247/3

2. On the basis of

the abovementioned provisions, may a
national legislature collect, in respect of slaughtering carried
out outside normal slaughtering hours at the request of the
owner, an additional fee on a percentage basis on top of the
fee collected for slaughtering inspections in normal slaugh-
tering hours when the latter reflects the additional actual
costs, or must those costs be contained in the standard
(increased) fee for all persons subject to a fee?

Action brought on 13 July 2007 — Commission of the
European Communities v Italian Republic

(Case C-326/07)

(2007/C 247/05)

Language of the case: Italian

for

Reference
from the
preliminary
Bundesfinanzhof (Germany) lodged on 11 July 2007 —
Hein Persche v Finanzamt Lüdenscheid

ruling

a

(Case C-318/07)

(2007/C 247/04)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Claimant: Hein Persche

Defendant: Finanzamt Lüdenscheid

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Pignatoro-Nolin and H. Støvlbæk, Agents)

Defendant: Italian Republic

Form of order sought

— declare that, by including provisions such as those contained
in Article 1(2) of the decree of the President of the Council
of Ministers of 10 June 2004 on the definition of criteria for
the exercise of the special powers referred to in Article 2 of
Decree-Law No 332 of 31 May 1994, converted into law
with amendments by Law No 474 of 30 July 1994,
and amended by Article 4(227)(a), (b) and (c) of Finance
Law No 350/2004, the Italian Republic has failed to fulfil its
obligations under Articles 43 and 56 of the EC Treaty;

Questions referred

— order the Italian Republic to pay the costs.

1. Do donations of everyday goods by a national of a Member
State to bodies which have their seat in a different Member
State and, under the law of that Member State, are recog-
nised as charitable, fall within the scope of application of
free movement of capital (Article 56 EC)?

2. If question 1 is answered in the affirmative:

Having regard to the obligation of tax authorities to verify
statements made by taxable persons and to the principle of
proportionality (Article 5(3) EC), is it incompatible with free
movement of capital (Article 56 EC) for the law of a Member
State to confer a tax benefit on donations to charitable
bodies only if the latter are resident in that Member State?

3. If question 2 is answered in the affirmative:

Does Directive 77/799/EEC impose an obligation on the tax
authorities of Member States to obtain assistance from the
administrative authorities of another Member State in order
to verify facts which have occurred in that other Member
State, or can the procedural rules of a taxable person's home
Member State require him to bear the burden of proof
(objective burden of proof) in relation to facts which have
occurred abroad?

Pleas in law and main arguments

The Commission takes the view that the criteria referred to by
Article 1(2) of the Decree of 10 June 2004 for the exercise of
special powers, laid down by Article 4(227)(a), (b) and (c) of
Law No 350/2004, are not precise or specific enough to enable
in another Member State to know when the
an investor
special powers under Article 4(227)(a),
(b) and (c) of Law
No 350/2004 will be used.

The special powers under Article 4(227)(a), (b) and (c) of Law
No 350/2004 are: to prevent investors from acquiring signifi-
cant shareholdings representing at least 5 % of voting rights or
a lower percentage fixed by the Ministry of Finance, to prevent
the conclusion of contracts and agreements between members
representing 5 % of voting rights or a lower percentage fixed by
the Ministry of Finance and the power to veto the adoption of
resolutions for the dissolving of companies, the transferring of
shareholdings, for merger, demerger, transferring abroad of the
company headquarters, or altering of company objects, criteria
applicable to all the sectors mentioned in the first subparagraph
of Article 4(227) of the Law (defence, transport, telecommuni-
cations, energy sources and other public services).