Case C-174/08: Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 April 2008 — NCC Construction Danmark A/S v Skatteministeriet
Date: 2008-04-28
Institutions: Court of Justice
Subjects: Denmark, VAT, building industry, interpretation of the law, overheads, sale, tax exemption, tax relief

5.7.2008

EN

Official Journal of the European Union

C 171/25

The Commission is of the view that such rights of veto consti-
tute restrictions of movements of capital and of freedom of
establishment. Such measures amount
to
direct investment in PT, an impediment to portfolio investment
and an impediment to the exercise of freedom of establishment.

to an impediment

Those special rights of the State constitute State measures, for
the golden shares are not a consequence of a normal application
of company law.

The golden shares have nothing to do with lawful objectives of
public interest or, especially, with those pleaded by the
Portuguese State, viz., public order and safety, maintaining of
cable and copper networks and maintaining of wholesale and
retail activity within PT, public service concessions, the pattern
for regulating the market in telecommunications and any distur-
bance of the capital market.

In any case, the Portuguese State has not observed the principle
of proportionality, for the measures at issue are not apt to
ensure that the objectives pursued are attained and they go
beyond what is necessary in order to attain those objectives.

State in question — based on Article 5(7) and Article 6(3) of
the Sixth Directive — is required to pay VAT on its internal
supplies in connection with the construction of buildings on
its own account with a view to subsequent sale, to have only
a partial right
to deduct VAT for general costs for the
purposes of the building business, given that the subsequent
sale of the real estate is, under the Member State's VAT legis-
lation, exempt from VAT on the basis of Article 28(3)(b) of
the Sixth VAT Directive, read in conjunction with point 16
of Annex F?

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

Reference for a preliminary ruling from the Administrative
Court of Appeal, Thessaloniki (Greece) lodged on 28 April
2008 — Maria Kastrinaki v A.KH.E.P.A. University
Hospital, Thessaloniki

Reference for a preliminary ruling from the Østre Landsret
(Denmark) lodged on 28 April 2008 — NCC Construction
Danmark A/S v Skatteministeriet

(Case C-174/08)

(2008/C 171/37)

Language of the case: Danish

Referring court

(Case C-180/08)

(2008/C 171/38)

Language of the case: Greek

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: NCC Construction Danmark A/S

Defendant: Skatteministeriet

Questions referred

1. Is the term ‘incidental real estate transactions’

in the second
sentence of Article 19(2) of the Sixth VAT Directive (1) to be
interpreted as covering the activities of a building business
which is subject to VAT in connection with the subsequent
sale of real estate built by the building business on its own
account as an activity fully subject to VAT with a view to
resale?

2. For the purposes of the answer to question 1, is the extent
to which the sales activities, viewed separately, entail the use
of goods and services on which VAT is payable of relevance?

3. Is it consistent with the VAT-law principle of neutrality for a
building business which, under the legislation of the Member

Administrative Court of Appeal, Thessaloniki

Parties to the main proceedings

Applicant: Maria Kastrinaki

Defendant: A.KH.E.P.A. University Hospital, Thessaloniki

Questions referred

1. Where nationals of a Member State, relying upon evidence of
a qualification that they believe comes within the scope of
Directive 89/48/ΕEC, have been recruited by a legal person
governed by public law and exercise a regulated profession
in the host Member State under a contract of employment of
unlimited duration governed by private
law, having
progressed in terms of their career and salary in keeping
with the qualification in question, is it subsequently open to
the competent authorities, for the purpose of Articles 1, 2, 3
and 4 of the said directive, interpreted in the light of Arti-
cles 149 and 150 of the Treaty establishing the European
Community, to prevent such persons from exercising their
professional rights because they are unable to recognise the
academic equivalence of the qualification relied on for the
purpose of classification in the job category and salary grade