Case C-566/07: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 21 December 2007 — Staatssecretaris van Financiën v Stadeco BV
Date: 2007-12-21
Institutions: Court of Justice
Subjects: Netherlands, VAT, building industry, interpretation of the law, tax system

8.3.2008

EN

Official Journal of the European Union

C 64/23

Pleas in law and main arguments

Form of order sought

Under the Spanish legislation in force until 31 December 2006,
the taxation of capital gains of non-residents was subject to a
proportional rate of 35 %, while that of residents was subject to
a progressive schedule if the capital assets remained their prop-
erty for a period of less than one year, and to a proportional
rate of 15 % if the period of ownership exceeded one year.
Consequently, the tax burden borne by non-residents if they
sold their assets after the lapse of one year following acquisition
was always greater. In the event of disposal of assets within the
year following acquisition, non-residents also bore a greater tax
burden, except when the average rate applied to resident
taxpayers exceeded 35 % (which would imply very considerable
capital gains).

The Commission considers that there is no objective difference
between the situations of those two categories of taxpayers, so
that the higher tax burden on non-residents is discrimination
which unlawfully restricts freedom of movement for workers
and the free movement of capital provided for in Articles 39
and 56 EC and Articles 28 and 40 of the EEA Agreement.

— Set aside the judgment of the Court of First Instance of

18 October 2007.

— Order the defendant and defendant on appeal to pay the

costs incurred both at first instance and on appeal.

Pleas in law and main arguments

The appeal is based on an infringement of Community law by
the Court of First Instance. It was not until the proceedings
before the Board of Appeal that the Court of First Instance
refused to uphold the appellant's request for the opponent to
prove the use of its mark. The Court of First Instance thereby
misconceived the principle of continuity in terms of functions
between OHIM departments and infringed Article 43(2) and (3)
and Article 74 of Regulation No 40/94.

Pursuant to the principle of continuity in terms of functions
between OHIM departments the Board of Appeal should have
based its decision on all of the claims made by the appellant
both in the proceedings before the Opposition Division and
those before the Board of Appeal.

Appeal brought on 31 December 2007 by AMS Advanced
Medical Services GmbH against the judgment of the Court
of First Instance (Fifth Chamber) delivered on 18 October
2007 in Case T-425/03 AMS Advanced Medical Services
GmbH v Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case C-565/07 P)

(2008/C 64/34)

Language of the case: German

Reference for a preliminary ruling from the Hoge Raad der
2007 —
Nederlanden

21 December

lodged

on

Staatssecretaris van Financiën v Stadeco BV

(Case C-566/07)

(2008/C 64/35)

Language of the case: Dutch

Parties

Referring court

Hoge Raad der Nederlanden

Appellant: AMS Advanced Medical Services GmbH (represented
by: S. Schäffler, Rechtsanwältin)

Parties to the main proceedings

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), American Medical
Systems, Inc.

Respondent: Stadeco BV

Appellant: Staatssecretaris van Financiën

C 64/24

EN

Official Journal of the European Union

8.3.2008

Questions referred

1. Is Article 21(1)(c) of the Sixth Directive (1) to be interpreted
as meaning that no liability to pay VAT arises in the Member
State in which the issuer of the invoice is resident or estab-
lished if the issuer of that invoice includes in it the VAT in
respect of an activity which, according to the common
system of value added tax, is deemed to be carried out in
another Member State or in a non-member country?

2. If not: if an invoice as referred to in Article 21(1)(c) of the
Sixth Directive has been issued to a recipient of services who
is not entitled to deduct VAT (and consequently there is no
risk of any loss of tax revenues), are the Member States
entitled to make the correction of the erroneously invoiced
VAT which, according to that provision,
is consequently
liable to be paid, subject to the requirement that the taxable
person subsequently issues a corrected invoice to his
customer in which there is no mention of any VAT amount?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1).

Reference for a preliminary ruling from the Raad van State
(Netherlands), lodged on 27 December 2007 — Minister
voor Wonen, Wijken en Integratie v Woningstichting Sint
Servatius

(Case C-567/07)

(2008/C 64/36)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Minister voor Wonen, Wijken en Integratie

Defendant: Woningstichting Sint Servatius

Questions referred

1. Does the requirement that the Minister give prior authori-
sation for any cross-frontier activities of an undertaking
which is authorised by law to promote the Netherlands'

public housing interests, which may rely on public
resources for this purpose, which may operate, by law,
solely in those interests, and which in principle has its area
of activity within the Netherlands (‘authorised institution’)
constitute a restriction on the free movement of capital, as
referred to in Article 56 of the EC Treaty?

2.a. Can a Member State's public housing interests be regarded
as a public policy interest as referred to in Article 58 of
the EC Treaty?

2.b. Can a Member State's public housing interests be regarded
as an overriding reason in the public interest recognised in
the case-law of the Court of Justice?

2.c. More specifically, can interest in the effectiveness of the
ability to finance a Member State's public housing system
be regarded as a public policy interest as referred to in
Article 58 of the EC Treaty or as an overriding reason in
the public interest recognised in the case-law of the Court
of Justice?

3.a. Assuming that the requirement of prior authorisation for
an authorised institution as referred to in Question 1
constitutes a restriction for which there is justification as
referred to in Questions 2.a, 2.b and 2.c, is that require-
ment necessary and proportionate?

3.b. When applying that justification, does a Member State have
a wide margin of discretion in determining the scale of the
public interest concerned and the manner in which that
interest is promoted? Is one of the determinants in this
context
if any,
powers in the public housing sector?

the Community has few,

the fact

that

4.a. Besides, or in conjunction with, the overriding reasons in
the EC
the public interest referred to in Article 58 of
Treaty and recognised in the case-law of
the Court of
Justice, can a Member State rely on Article 86(2) of the EC
Treaty to justify a restriction on the free movement of
capital, if special rights have been granted to the undertak-
ings concerned and those undertakings are entrusted with
the operation of services of general economic interest?

4.b. Do the public interests referred to in Article 58 of the EC
Treaty and the overriding reasons in the public interest
recognised in the case-law of the Court of Justice have the
same content as the general economic interest referred to
in Article 86(2) of the EC Treaty?

4.c. Does

reliance by the Member State

concerned on
Article 86(2) of the EC Treaty, its contention being that the
undertakings to which special rights have been granted
perform tasks of general economic interest, have additional
weight over and above reliance on public interests as
referred to in Article 58 of the EC Treaty and the over-
riding reasons in the public interest recognised in the case-
law of the Court of Justice?