Case C-460/07: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 11 October 2007 — Sandra Puffer v Unabhängiger Finanzsenat, Außenstelle Linz
Date: 2007-12-22
Institutions: Court of Justice
Subjects: VAT, equal treatment, interpretation of the law, residence, tax harmonisation, tax relief

C 315/26

EN

Official Journal of the European Union

22.12.2007

4. Does Article 43 EC preclude the application of a legislative
rule of a Member State under which, for the purposes of
assessment to corporation tax, the exemption of the distrib-
uted profits received during a taxable period by a company
from its subsidiary established in another Member State is
limited in the first Member State to the amount of the profit
made in the taxable period during which the profits were
distributed (after certain statutorily defined deductions),
whereas a full exemption of the distributed profits would be
possible if that company had set up a permanent establish-
ment in that other Member State?

first subparagraph of Article 4(5) of the Sixth Directive to be
considered as being directly effective?

3. Are the activities of a natural person, such as those of a
bailiff who exercises public power and is considered under
national law to be a public official, to be considered those of
a body governed by public law, in other words, is he not to
be considered a taxable person in respect of activities and
transactions in which he is involved as a public authority
within the meaning of the first subparagraph of Article 4(5)
of the Sixth Directive?

(1) OJ 1990 L 225, p. 6.

Reference for a preliminary ruling from the Najvyšší súd
Slovenskej republiky lodged on 9 October 2007 — Karol
Mihal v Daňový úrad Košice V

(Case C-456/07)

(2007/C 315/45)

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Applicant: Karol Mihal

Defendant: Daňový úrad Košice V

Questions referred

1. Is the first subparagraph of Article 4(5) of Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of
assessment (‘the Sixth Directive’) to be interpreted as relating
only to those bodies governed by public law which are legal
persons and not natural persons; in other words, in respect
of the activities or transactions in which they engage as
public authorities, are those bodies governed by public law
which are legal persons to be considered non-taxable persons
whilst those bodies governed by public law which are natural
persons are to be considered taxable persons?

2. Where national legislation contains a more restrictive defini-
tion of the group of persons not considered to be taxable
persons (non-taxable persons) than that contained in the first
is the
subparagraph of Article 4(5) of the Sixth Directive,

Reference for a preliminary ruling from the Verwaltungs-
gerichtshof (Austria) lodged on 11 October 2007 — Sandra
Puffer v Unabhängiger Finanzsenat, Außenstelle Linz

(Case C-460/07)

(2007/C 315/46)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Sandra Puffer

Defendant: Unabhängiger Finanzsenat, Außenstelle Linz

Questions referred

1. Does Sixth Council Directive 77/388/EEC of 17 May 1977
on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added
tax: uniform basis of assessment (1) (‘the Sixth Directive’), in
particular Article 17 thereof,
infringe fundamental rights
under Community law (the Community-law principle of
equal treatment) because it has the effect of enabling persons
liable to pay value added tax (VAT) to acquire ownership of
residential properties
residential
purposes (consumption)
for approximately 5 % less than
other EU citizens, with the final value of that advantage
rising indefinitely in line with the level of acquisition and
construction costs of the residential property in question?
Does such an infringement arise also as a result of the fact
that persons liable to pay VAT can acquire ownership of resi-
dential properties used for
their own private residential
purposes — where such properties are used, even minimally,
in connection with their business — for approximately 5 %
less than other taxable persons who do not use their private
dwellings, even minimally, in connection with their business?

their own private

for

22.12.2007

EN

Official Journal of the European Union

C 315/27

2. Does national legislation implementing the Sixth Directive,
in particular Article 17 thereof,
infringe Article 87 EC
because, while the legislation does allow persons liable to
pay VAT who carry out taxable transactions the advantage
referred to in Question 1 in respect of properties which they
use for private residential purposes, that advantage is not
available to taxable persons whose transactions are exempt?

3. Does Article 17(6) of

the Sixth Directive continue to
the national
legislature amends a national
have effect
if
the exclusion of deductions (in this case,
provision for
the Austrian Umsatzsteuergesetz
Paragraph 12(2)(1) of
(Law on Turnover Tax) 1994), which is based on
(UStG)
Article 17(6) of the Sixth Directive, with the express inten-
tion of retaining that exclusion of deductions, and the
Austrian UStG would indeed result in the retention of an
exclusion of deductions, but — owing to an error in the
interpretation of Community law (in this case Article 13B(b)
of the Sixth Directive) which was only subsequently identi-
fied — the national legislature introduced a provision which,
viewed in isolation, would, according to Community law
(Article 13B(b) of the Sixth Directive as interpreted in Case
C-269/00 Seeling [2003] ECR I-4101), allow a deduction to
be made?

4. If the answer to Question 3 is in the negative:

of

of

an

the

effect

exclusion

Could
deductions
(Paragraph 12(2)(2)(a) of the UStG 1994) which is based on
the ‘standstill clause’ (Article 17(6) of the Sixth Directive) be
two
restricted if
overlapping national provisions excluding deductions (Para-
graph 12(2)(2)(a) of the UStG 1994 and Paragraph 12(2)(1)
of
the UStG 1994) and subsequently does not proceed
further because it finds that it has erred in law?

legislature amends one of

the national

(1) OJ 1977 L 145, p. 1.

Reference for a preliminary ruling from the Monomeles
Protodikio Livadias (Livadia Court of First Instance) lodged
on 22 October 2007 — Panagiotis Koskovolis and Ekaterini
Pappa v Municipality of Kiriaki, Beotia

(Case C-467/07)

(2007/C 315/47)

Language of the case: Greek

Referring court

Livadia Court of First Instance

Parties to the main proceedings

Claimants: Panagiotis Koskovolis and Ekaterini Pappa

Defendant: Municipality of Kiriaki

Questions referred

1. Do clause 5 and clause 8(1) and (3) of the Framework Agree-
ment on fixed-term work concluded by ETUC, UNICE and
CEEP, which forms an integral part of Council Directive
1999/70/EC (OJ 1999 L 175 p. 43), mean that Community
law (by reason of the application of the said Framework
Agreement) does not allow a Member State to adopt
measures

(a) where an equivalent legal measure within the meaning of
clause 5(1) of the Framework Agreement already existed
under national law before the directive entered into force
and

(b) where the measures adopted in order to apply the Frame-
work Agreement reduce the general level of protection
afforded to fixed-term workers under national law?

legal measure under national

2. If question 1 is answered in the affirmative, where there is an
law, within the
equivalent
meaning of clause 5(1) of the Framework Agreement, which
existed before Directive 1999/70/EC entered into force, such
as Article 8(3) of Law 2112/1920 at issue in the main
proceedings, is the adoption of a legal measure by reason of
the application of the Framework Agreement, such as Article
11 of Presidential Decree 164/2004 at issue in the main
proceedings, an unacceptable reduction in the general level
[of protection] afforded to fixed-term workers under national
law within the meaning of clause 8(1) and (3) of the Frame-
work Agreement:

contracts

(a) when the legal measure in question applying the Frame-
work Agreement was adopted after the time-limit for
transposing Directive 1999/70/EC had elapsed, but only
fixed-term employment
and relationships
which were in effect before its entry into force or had
expired within a certain period before its entry into force
but after the time-limit for transposing the Directive had
elapsed fall within its chronological scope, although the
equivalent legal measure which already existed does not
have a chronologically restricted scope of application and
covers all fixed-term employment contracts which had
been concluded, were in effect or had expired when
Directive 1999/70/EC came into force and the time-limit
for its transposition had elapsed;