Case C-439/07: Reference for a preliminary ruling from the Hof van Beroep te Brussel — Belgium lodged on 24 September 2007 — Belgische Staat v KBC Bank NV
Date: 2007-12-22
Institutions: Court of Justice
Subjects: corporation tax, interpretation of the law, parent company, subsidiary, tax exemption, tax on profits of self-employment

22.12.2007

EN

Official Journal of the European Union

C 315/25

Other parties to the proceedings: Council of the European Union
(represented by: F. Florindo Gijón and Z. Kupčová, Agents),
Commission of the European Communities (represented by: T.
van Rijn and G. Berscheid, lawyers)

Questions referred

Re:

Appeal against the judgment of the Court of First Instance (First
Chamber) of 13 December 2006 in Case T-138/03 É.R. and
Others v Council and Commission, by which the Court dismissed
as partially inadmissible and, for the remainder, as unfounded,
the action brought by the applicants seeking compensation
under Article 235 EC and the
second paragraph of
Article 288 EC for the damage allegedly suffered as a conse-
quence of the infection and subsequent death of members of
their families who suffered from a new variant of Creutzfeldt-
Jakob disease, which was linked to the outbreak and spread in
Europe of bovine spongiform encephalopathy, for which the
Council and the Commission were allegedly responsible —
Conditions giving rise to non contractual
the
Communities

liability of

Operative part of the order

1. The appeal is dismissed.

2. É.R., O.O., J.R., A.R., B.P.R., T.D., J.D., D.D., V.D.; D.E., É.E.;
C.R.; H.R., M.S.R., I.R., B.R., M.R.; and C.S are ordered to pay
the costs.

(1) OJ C 129 of 9.6.2007.

Reference for a preliminary ruling from the Hof van
Beroep te Brussel — Belgium lodged on 24 September
2007 — Belgische Staat v KBC Bank NV

(Case C-439/07)

(2007/C 315/44)

Language of the case: Dutch

first

indent,

in particular Article 4(1),

1. Must Council Directive 90/435/EEC (1) of 23 July 1990 on
the common system of taxation applicable in the case of
parent companies and subsidiaries of different Member
States,
thereof, be
construed as precluding a situation in which a Member State
applies the exemption relating to distributed profits received
by a company of that State from its subsidiary in another
Member State, except when the subsidiary is liquidated, by
first including in full the distributed profits in the taxable
basis and then deducting 95 % of those profits from the
taxable basis but limiting the deduction to the amount of
profits made in the taxable period in which the distribution
of profits took place (after certain statutorily defined deduc-
tions)
(Article 205(2) WIB/92 [Belgian Income Tax Code
1992] in conjunction with Article 77 KB/WIB.92 [Royal
Decree implementing the Income Tax Code 1992]), in view
of the fact that the result of such a limitation of the deduc-
tion of distributed profits is that, if the parent company had
no or insufficient taxable profits during the taxable period in
which the distributed profits were received,
it would in a
taxable period be taxed on those distributed
subsequent
profits which it had received, or at least that the losses of
that taxable period would be offset by means of distributed
profits, 95 % of which must remain untaxed pursuant to
Article 4(1), first indent, in conjunction with Article 4(2), of
Directive 90/435 and that consequently those losses, in the
amount of the distributed profits received, could no longer
be carried forward to a subsequent taxable period?

2. If

first indent, of

the aforementioned Directive 90/435/EEC is

to be
construed as meaning that the Belgian rule is contrary to
Article 4(1),
the Directive with regard to
distributed profits received by a Belgian parent company
from a subsidiary established within the EU, must it then be
determined that that provision of the Directive is also incom-
patible with the application of the Belgian rule to distributed
profits received by a Belgian parent company from a Belgian
subsidiary where, as in the present case, the Belgian legisla-
ture,
in transposing the Directive into Belgian law, has
chosen to apply the same treatment to purely internal situa-
tions and to those governed by the Directive and has there-
fore aligned the Belgian legislation with the Directive also for
purely internal situations?

Referring court

Hof van Beroep te Brussel

Parties to the main proceedings

Applicant: Belgische Staat

Defendant: KBC Bank NV

3. If Directive 90/435/EEC must be taken to mean that the
Belgian rule is contrary to Article 4(1), first indent, of the
Directive with regard to distributed profits received by a
Belgian parent company from a subsidiary established in the
EU and the Leur-Bloem judgment of the Court of Justice (Case
C-28/95 Leur-Bloem [1995] ECR I-4161) is extended to cover
distributed profits received from a subsidiary established in
Belgium, is it then contrary to Article 56(1) EC for Belgium
to continue to apply the legislative provision in question,
unchanged, to dividends originating from subsidiaries estab-
lished in non-member countries, on the ground that the
latter dividends are
favourably than
domestic dividends or EU dividends?

then treated less

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