Case C-37/08: Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 31 January 2008 — RCI Europe v Commissioners of HM Revenue and Customs
Date: 2008-01-31
Institutions: Court of Justice
Subjects: VAT, interpretation of the law, personal property, service

C 92/16

EN

Official Journal of the European Union

12.4.2008

Questions referred

— Order the Hellenic Republic to pay the costs.

1.

(a) Is it contrary to Article 56 EC for a natural person with
unlimited tax liability in Germany to be unable to deduct
losses from the letting or leasing of real estate located in
another Member State — in contrast to a loss from real
estate on national territory — when calculating taxable
income in Germany in the year in which the loss arises?

(b) Is it relevant whether the natural person made the real
estate investment himself or does an infringement arise
also where the natural person has become the owner of
the real estate located in another Member State by way
of inheritance?

2. Is it contrary to Article 56 EC for a natural person with
unlimited tax liability in Germany to be able to apply only
the normal method of depreciation in calculating income
from the letting or leasing of real estate located in another
EU Member State, whilst being able to apply the higher
decreasing balance method of depreciation in the case of real
estate on national territory?

3. If Questions 1 and 2 must be answered in the negative, are
the national provisions at issue contrary to the freedom of
movement laid down in Article 18 EC?

Pleas in law and main arguments

In the opinion of the Commission, the doctors who are referred
to in Article 29(d.1) and (d.2) of Law 3209/03 have acquired
rights within the meaning of Article 36 of Council Directive
93/16/EEC, and accordingly are allowed to practise as doctors
under the national social security scheme and to receive a certi-
ficate attesting to their acquired rights. However, to grant them
the qualification of general practitioner without their under-
going the relevant specific training is contrary to Articles 30
and 31 of the Directive. Accordingly, the Greek authorities must
withdraw the diplomas issued although the conditions of the
Directive were not satisfied.

(1) OJ L 165, 7.7.1993, p. 1.

Reference for a preliminary ruling from VAT and Duties
Tribunal, London (United Kingdom) made on 31 January
2008 — RCI Europe v Commissioners of HM Revenue and
Customs

Action brought on 31 January 2008 — Commission of the
European Communities v Hellenic Republic

(Case C-36/08)

(2008/C 92/29)

(Case C-37/08)

(2008/C 92/30)

Language of the case: English

Language of the case: Greek

Referring court

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos and H.Støvlbæk, acting as Agents)

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicant: RCI Europe

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

— Declare that, by adopting and maintaining in force rules
such as Article 29(d.1)
and (d.2) of Law 3209/03
(Government Gazette 304/Α) which are not in compliance
with Articles 30, 31 and 36 of Council Directive
93/16/EEC (1) [of 5 April 1993 to facilitate the free move-
ment of doctors and the mutual
their
diplomas, certificates and other evidence of formal qualifica-
tions], and by not withdrawing diplomas issued although
the conditions set out in that directive were not satisfied, the
Hellenic Republic has failed to fulfil
its obligations under
Articles 30, 31 and 36 of that directive.

recognition of

Defendant: Commissioners of HM Revenue and Customs

Questions referred

1. In the context of the services supplied by the Appellant for:

— the enrolment fee;

— the subscription fee; and

— the exchange fee

paid by members of the Appellant's Weeks Scheme, what are
the factors to be considered when determining whether the
services are ‘connected with’ immovable property within the
the Sixth VAT Directive (1)
meaning of Article 9(2)(a) of
(now Article 45 of the Recast VAT Directive (2))?

12.4.2008

EN

Official Journal of the European Union

C 92/17

2. If any or all of the services supplied by the Appellant are
‘connected with’ immovable property within the meaning of
Article 9(2)(a) of the Sixth VAT Directive (now Article 45 of
the Recast VAT Directive), is the immovable property with
which each or all of the services are connected the immo-
vable property deposited into the pool, or the immovable
property requested in exchange for the deposited immovable
property, or both of these properties?

Parties to the main proceedings

Applicant: Asturcom Telecomunicaciones S.L.

Defendant: Cristina Rodríguez Nogueira

Question referred

3. If any of the services are ‘connected with’ both immovable
properties, how are the services to be classified under the
Sixth VAT Directive (now the Recast VAT Directive)?

4. In light of the divergent solutions found by different Member
States how does the Sixth VAT Directive (now the Recast
VAT Directive) characterise the ‘exchange fee’
income of a
taxable person received for the following supplies:

May the protection of consumers under Council Directive
93/13/EEC (1) of 5 April 1993 on unfair terms in consumer
contracts require the court hearing an action for enforcement of
a final arbitration award, made in the absence of the consumer,
to determine of its own motion whether the arbitration agree-
ment is void and accordingly to annul the award if it finds that
that arbitration agreement contains an unfair term to the detri-
ment of the consumer?

— facilitating the exchange of holiday usage rights held by
one member of a scheme run by the taxable person for
the holiday usage rights held by another member of that
scheme; and/or

(1) OJ 1993 L 95, p. 29.

— supplying usage rights in accommodation purchased by
the taxable person from taxable third parties to supple-
ment the pool of accommodation available to members
of that scheme.

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

(2) Council Directive 2006/112/EC of 28 November 2006 on the

common system of value added tax (OJ L 347, p. 1).

Reference for a preliminary ruling from the Juzgado de
Primera Instancia no 4, Bilbao (Spain) lodged on 5 February
2008 — Asturcom Telecomunicaciones S.L. v Cristina
Rodríguez Nogueira

(Case C-40/08)

(2008/C 92/31)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia no 4, Bilbao

Action brought on 5 February 2008 — Commission of the
European Communities v Czech Republic

(Case C-41/08)

(2008/C 92/32)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. van Beek and P. Ondrůšek, acting as Agents)

Defendant: Czech Republic

Form of order sought

The Commission asks the Court to:

to

necessary

— declare that, in so far as the Czech Republic has failed to
adopt (all) the laws, regulations and administrative provi-
comply with Council Directive
sions
86/378/EEC of 24 July 1986 on the implementation of the
principle of equal treatment for men and women in occupa-
tional social security schemes (1), or in any case has failed to
inform the Commission thereof, the Czech Republic has
failed to fulfil its obligations under Article 12 of that direc-
tive and Article 54 of the Act concerning the conditions of
accession of the Czech Republic, the Republic of Estonia,
the Republic of Cyprus, the Republic of Latvia, the Republic
the Republic of
of Lithuania,
Malta, the Republic of Poland, the Republic of Slovenia and
the Slovak Republic and the adjustments to the Treaties on
which the European Union is founded;

the Republic of Hungary,