Case C-102/08: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 5 March 2008 — SALIX Grundstücks-Vermietungsgesellschaft mbH & Co. Objekt Offenbach KG v Finanzamt Düsseldorf-Süd
Date: 2008-03-05
Institutions: Court of Justice
Subjects: VAT, approximation of laws, competition law, interpretation of the law, public institution, tax harmonisation

C 142/12

EN

Official Journal of the European Union

7.6.2008

2. If Question 1 is answered in the negative: Do those duties of
the
the customary law of
transparency form part of
European Communities,
in the sense that they are already
applied continually and constantly, equally and generally, and
are recognised as a binding rule by those concerned?

Reference for a preliminary ruling from the Pest Megyei
Bíróság (Magyar Köztársaság) lodged on 3 March 2008 —
CIBA Speciality Chemicals Central and Eastern Europe
Szolgáltátó, Tanácsadó és Keresdedelmi Kft. v Adó- és
Pénzügyi Ellenőrzési Hivatal Hatósági Főosztály

3. Do the duties of

transparency mentioned in Question 1
require,
in the case also of an intended amendment to a
service concession contract — including the substitution of a
subcontractor who was mentioned as part of the tender —
that the negotiations on this are again opened up to compe-
tition with an appropriate degree of advertising, or what
would be the criteria for requiring such an opening up?

4. Are the principles and duties of transparency mentioned in
Question 1 to be interpreted as meaning that in the case of
service concessions,
in the event of a breach of duty, a
contract concluded as a result of the breach and intended to
create or amend a continuing obligation must be terminated?

5. Are the principles and duties of transparency mentioned in
Question 1 and Article 86(1) EC, referring also if necessary
to Article 2(1)(b) and (2) of
the Transparency Directive
80/723/EEC (1) and Article 1(9) of the Procurement Coordi-
nation Directive 2004/18/EC (2),
interpreted as
meaning that an undertaking is subject to those duties of
transparency,
contracting
authority, if

a public undertaking or

to be

as

— it was set up by a regional or local authority for the
purpose of waste disposal and street cleaning but also
operates in the free market,

— it belongs to that regional or local authority to the extent
of a 51 % holding, but decisions of shareholders can be
taken only by a three-quarters majority,

— the regional or local authority appoints only a quarter of
the under-

the supervisory board of

the members of
taking, including the chairman, and

(Case C-96/08)

(2008/C 142/18)

Language of the case: Hungarian

Referring court

Pest Megyei Bíróság

Parties to the main proceedings

Applicants: CIBA Speciality Chemicals Central and Eastern
Europe Szolgáltátó, Tanácsadó és Keresdedelmi Kft.

Defendant: Adó- és Pénzügyi Ellenőrzési Hivatal Hatósági Főosz-
tály

Question referred

Can the principle of freedom of establishment under Articles 43
and 48 EC be interpreted as precluding a legal rule under which
a trading company established in Hungary must pay a voca-
tional training levy if it employs workers in a branch abroad
and meets its tax and social security obligations with regard to
such workers in the State where the branch is situated?

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 5 March 2008 — SALIX
Grundstücks-Vermietungsgesellschaft mbH & Co. Objekt
Offenbach KG v Finanzamt Düsseldorf-Süd

— it achieves more than half

its turnover from bilateral
contracts for waste disposal and street cleaning in the
territory of that regional or local authority, which reim-
burses itself by means of municipal taxes on its resi-
dents?

(Case C-102/08)

(2008/C 142/19)

Language of the case: German

(1) Commission Directive 80/723/EEC of 25 June 1980 on the transpar-
ency of financial relations between Member States and public under-
takings (OJ 1980 L 195, p. 35); Commission Directive 2000/52/EC
of 26 July 2000 amending Directive 80/723/EEC on the transpar-
ency of financial relations between Member States and public under-
takings (OJ 2000 L 193, p. 75).

(2) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ 2004 L 134, p. 114).

the European Parliament and of

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: SALIX Grundstücks-Vermietungsgesellschaft mbH &
Co. Objekt Offenbach KG

Defendant: Finanzamt Düsseldorf-Süd

7.6.2008

EN

Official Journal of the European Union

C 142/13

Questions referred

Question referred

1. May the Member States ‘treat’ activities of States, regional
and local government authorities and other bodies governed
by public law which are exempt from tax under Article 13
of
the Sixth Council Directive of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
taxes (77/388/EEC) as activities in which they
turnover
engage as public authorities within the meaning of
the
fourth subparagraph of Article 4(5) of the Sixth Council
Directive of 17 May 1977 on the harmonisation of the laws
of the Member States relating to turnover taxes (Directive
77/388/EEC) (1) only where the Member States make express
legal provision to that effect?

2. Can ‘significant distortions of

competition’ within the
meaning of the fourth subparagraph in conjunction with the
second subparagraph of Article 4(5) of the Sixth Council
Directive of 17 May 1977 on the harmonisation of the laws
of the Member States relating to turnover taxes exist only
where treatment of a body governed by public law as a non-
taxable person would lead to significant distortions of
competition to the detriment of competing private taxable
persons or also where treatment of a body governed by
public law as a non-taxable person would lead to significant
distortions of competition to its detriment?

Is Article 12 EC to be interpreted as precluding the application
of a provision of national law which provides that an annual
disc in respect of a motor vehicle for the use of federal toll
roads is made available free of charge only to those persons
with a defined disability who are resident or ordinarily resident
in national territory?

Reference for a preliminary ruling from the Unabhängiger
Verwaltungssenat des Landes Oberösterreich (Austria),
lodged on 6 March 2008 — Marc André Kurt v Bürger-
meister der Stadt Wels

(Case C-104/08)

(2008/C 142/21)

Language of the case: German

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

Referring court

Unabhängiger Verwaltungssenat des Landes Oberösterreich

Reference for a preliminary ruling from the Unabhängiger
Verwaltungssenat
(Austria)
Landes
lodged on 6 March 2008 — Arthur Gottwald v
Bezirkshauptmannschaft Bregenz

Vorarlberg

des

(Case C-103/08)

(2008/C 142/20)

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Vorarlberg

Parties to the main proceedings

Appellant: Arthur Gottwald

Respondent: Bezirkshauptmannschaft Bregenz

Parties to the main proceedings

Applicant: Marc André Kurt

Defendant: Bürgermeister der Stadt Wels

Questions referred

1. Is it compatible with the fundamental principles of

the
Treaty on the establishment of the European Community
and of the Treaty on Union (OJ 2006 C 321 E/1) and the
freedoms arising from those treaties for an EU citizen, who
in the light of his theoretical and practical education and
training and his relevant professional experience acquired
over many years and his qualifications is entitled, formally
and in practice,
to teach driving theory and practice to
learner drivers and most recently also to teach driving school
instructors and to establish, operate and manage a driving
school in a Member State, to be denied the right to manage
a driving school in his own Member State, by virtue of a
requirement to hold a diploma (‘Diplomzwang’) which is laid
down by statute and which cannot in practice be met?

2. Is the requirement to hold a diploma arising from Para-
graph 109(1)(e) KFG (Kraftfahrgesetz — Law on driving
Motor Vehicles) 1967 compatible in particular with the
values expressed by Articles 16 and 20 of the Charter on
Fundamental Rights (OJ 2007 C 303, p. 1) concerning the
freedom to pursue an economic or business activity, free
competition and the principle of equality of all citizens?