Case C-35/08: Reference for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 31 January 2008 — Grundstücksgemeinschaft Busley/Cibrian v Finanzamt Stuttgart-Körperschaften
Date: 2008-01-31
Institutions: Court of Justice
Subjects: Germany, building, free movement of persons, interpretation of the law, property leasing, tax on income

12.4.2008

EN

Official Journal of the European Union

C 92/15

2. In the event that the first question is answered in the affirma-

tive:

Is Article 11 of Regulation No 320/2006 compatible with
primary law, in particular with the principle of non-discrimi-
nation and the principle of
legitimate
expectations derived from Article 34 EC?

the protection of

of the common market yet at the same time excludes all
discrimination between producers or consumers in the Com-
munity, but nevertheless the uniform application of the addi-
tional levy, without identification of those producers who are
in deficit as compared with those who are producing
surpluses, ultimately discriminates against Italian producers
belonging to a milk-deficit country?

Reference for a preliminary ruling from the Tribunale
Ordinario di Padova, Italy lodged on 28 January 2008 —
Azienda Agricola Disarò Antonio v Cooperativa Milka
2000 S.C. a r.l.

(Case C-34/08)

(2008/C 92/27)

Language of the case: Italian

Referring court

Tribunale Ordinario di Padova

Parties to the main proceedings

Applicant: Azienda Agricola Disarò Antonio

Defendant: Cooperativa Milka 2000 Soc. coop. arl

Questions referred

1. Is

Council

(EC) No

Regulation

1788/2003 (1)

of
29 September 2003, which imposes an additional levy on
production of milk and milk products in excess of
the
national quota allocated, without taking account of periodical
updating of
the quantity allocated to each Community
country following specific verification of the respective quan-
tities produced, compatible with Article 32 of the Treaty and
with the aims of the common agricultural policy which that
article sets out, such as increasing agricultural productivity,
developing technical progress, ensuring rational development
of agriculture and also optimising utilisation of the factors of
production, in particular labour, since that mechanism also
has an impact on Italian milk and milk products producers,
detracting from a fair standard of living and from develop-
ment as a result of inadequate remuneration of the factors of
production and since Italy is in fact a milk-deficit country
(see the government report cited above, paragraph 6.5),
forced to import raw material
to sustain the industries
engaged in the processing and marketing of quality products
(see the agricultural report of 15 February 2004, annexed
hereto)?

3. Is Council Regulation (EC) No 1788/2003 compatible with
Article 34 EC in so far as it provides that pursuit of the
objectives set out in Article 33 ‘shall exclude any discrimina-
tion between producers or consumers within the Com-
munity’, whereas such discrimination is created by the regu-
lation, which, for the purpose of the additional levy, requires
a uniform contribution both from producers belonging to
milk-surplus countries and from those belonging to milk-
deficit countries such as Italy?

4. Is Council Regulation (EC) No 1788/2003 of 29 September
2003 compatible with the principle of proportionality laid
down in Article 5 of the Treaty in so far as the latter states
that Community action ‘shall not go beyond what is neces-
sary to achieve the objectives of this Treaty’, whereas the
uniform application of the additional levy goes further than
the aim of creating a common organisation of the market
because it perpetuates for average Italian farmers low produc-
tivity, low income and the need for permanent reliance on
public support?

(1) OJ L 270, p. 123.

Reference for a preliminary ruling from the Finanzgericht
Baden-Württemberg (Germany) lodged on 31 January 2008
— Grundstücksgemeinschaft Busley/Cibrian v Finanzamt
Stuttgart-Körperschaften

(Case C-35/08)

(2008/C 92/28)

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Grundstücksgemeinschaft Busley/Cibrian

2. Is Council Regulation (EC) No 1788/2003 compatible with
Article 33 EC, in so far as the latter provides for organisation

Defendant: Finanzamt Stuttgart-Körperschaften

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))?