Case C-318/07: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 11 July 2007 — Hein Persche v Finanzamt Lüdenscheid
Date: 2007-10-20
Institutions: Court of Justice
Subjects: consumer goods, donation, free movement of capital, indirect tax, institution of public utility, interpretation of the law, tax authorities

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).