Case C-242/08: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 4 June 2008 — Swiss Re Germany Holding GmbH v Finanzamt München für Körperschaften
Date: 2008-06-04
Institutions: Court of Justice
Subjects: VAT, approximation of laws, insurance contract, interpretation of the law, reinsurance, tax exemption

30.8.2008

EN

Official Journal of the European Union

C 223/23

In his third ground of appeal, the appellant claims that the
Court of First
Instance disregarded the obligation to state
reasons in judgments and the principles of non-discrimination
and respect for the rights of the defence, and that the Court
distorted the clear sense of the evidence presented for its assess-
ment. This ground of appeal can be broken down into three
parts.

In the first part of the third ground of appeal, the appellant
submits that the Court of First Instance disregarded both the
principle of non-discrimination and its obligation to state
reasons and the rules on the adducing of evidence by
concluding that the fact that some candidates in the competition
had knowledge of the document on which the written test was
based did not imply an infringement of the principle of non-
discrimination and by not
the Commission
the absence of discrimination
provide concrete evidence of
linked to that fact.

requiring that

the clear sense of

In the second part of this third ground of appeal, the appellant
claims that there was an infringement of the principle of non-
discrimination and a distortion of
the
evidence presented for assessment by the Court of First Instance
since the Court considered that the selection board was suffi-
ciently constant in composition to ensure the objective compar-
ison and marking of candidates, when the evidence in the docu-
ments before the Court demonstrated on the contrary that the
composition of
sufficiently
constant and when several essential pieces of factual informa-
tion were not made known to the Court of First Instance by the
Commission.

selection board was not

that

Lastly, in the third part of this ground of appeal, the appellant
relies on a further infringement of the principle of non-discrimi-
nation and the rules on the adducing of evidence, and a viola-
tion of the rights of the defence, in relation to the conclusions
drawn by the Court of First Instance as regards the impartiality
of the members of the selection board.

Reference for a preliminary ruling from the Landesgericht
lodged on 2 June 2008 —
Ried im Innkreis (Austria)

Criminal proceedings against Roland Langer

Party to the main proceedings

Roland Langer

Questions referred

1. Is Article 43 EC (Treaty establishing the European Com-
munity,
in the version of 2 October 1997, most recently
amended by the Treaty of 25 April 2005 concerning the
accession of the Republic of Bulgaria and Romania to the
European Union (OJ 2005 L 157, p. 11)) to be interpreted as
precluding a provision which provides that only public
limited companies established in the territory of a particular
Member State may there operate games of chance in casinos,
thereby necessitating the establishment or acquisition of a
company limited by shares in that Member State?

2. Are Articles 43 EC and 49 EC to be interpreted as precluding
a national monopoly on certain types of gaming, such as
games of chance in casinos,
if there is no consistent and
systematic policy whatsoever in the Member State concerned
to limit gaming,
licensed organisers
inasmuch as national
encourage participation in gaming — such as public sports
betting and lotteries — and advertise such gaming (on televi-
sion and in newspapers and magazines) in a manner which
goes as far as offering a cash payment for a lottery ticket
shortly before the lottery draw is made (‘TOI TOI TOI —
Believe in luck!’)?

3. Are Articles 43 EC and 49 EC to be interpreted as precluding
a provision under which all
licences granting the right to
operate games of chance and casinos are issued for a period
of 15 years on the basis of a scheme under which Com-
munity competitors (not belonging to that Member State) are
excluded from the tendering procedure?

a

for

Reference
from the
preliminary
Bundesfinanzhof (Germany) lodged on 4 June 2008 —
Swiss Re Germany Holding GmbH v Finanzamt München
für Körperschaften

ruling

(Case C-235/08)

(2008/C 223/35)

(Case C-242/08)

(2008/C 223/36)

Language of the case: German

Language of the case: German

Referring court

Landesgericht Ried im Innkreis

Referring court

Bundesfinanzhof

C 223/24

EN

Official Journal of the European Union

30.8.2008

Parties to the main proceedings

Applicant: Swiss Re Germany Holding GmbH

Defendant: Finanzamt München für Körperschaften

Questions referred

1. Must the fifth indent of Article 9(2)(e) and Article 13B(a)
and the second and third subparagraphs of Article 13B(d) of
the Sixth Council Directive 77/388/EEC of 17 May 1977 on
the harmonisation of the laws of the Member States relating
to turnover taxes be interpreted as meaning where in consid-
eration for payment of the sales price by the purchaser a
transfer (1) of a life reinsurance contract is effected, on the
basis of which, with the consent of the policyholder, the
contract's purchaser takes over the exempted reinsurance
activities of the previous insurer and in place of the previous
insurer supplies to the policyholder tax-exempt reinsurance
services, that such transfer must be regarded

(a) as an insurance or banking transaction within the
meaning of the fifth indent of Article 9(2)(e) of the Sixth
Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating
to turnover taxes, or

(b) as

a

reinsurance

transaction in accordance with
Article 13B(a) of the Sixth Council Directive 77/388/EEC
of 17 May 1977 on the harmonisation of the laws of the
Member States relating to turnover taxes, or

(c) as a transaction which in substance consists of

the
tax-exempt assumption of an obligation and an exempt
transaction concerning
in accordance with
debts
Article 13B(d)(2) and (3) of the Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of
the laws of the Member States relating to turnover taxes?

2. Is the answer to Question 1 any different where payment in
respect of the transfer is made not by the purchaser but the
previous insurer?

3. If alternatives (a), (b) and (c) of Question 1 are all answered
in the negative, must Article 13B(c) of the Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes
be interpreted as meaning that

— the transfer of

life reinsurance contracts in return for

consideration constitutes a supply of goods and

— that in the application of Article 13B(c) of the Sixth
Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating
to turnover taxes no distinction is to be drawn whether
the place in which the exempted activities are effected lies
in the Member State in which the goods are supplied or
in a different Member State?

Reference for a preliminary ruling from the Finanzgericht
Köln (Germany) lodged on 9 June 2008 — Gaz de France
für
— Berliner Investissement SA v Bundeszentralamt

Steuern

(Case C-247/08)

(2008/C 223/37)

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: Gaz de France — Berliner Investissement SA

Defendant: Bundeszentralamt für Steuern

Questions referred

1. Must Article 2(a) in conjunction with paragraph (f) of the
Annex to Council Directive 90/435/EEC of 23 July 1990 on
the common system of taxation applicable in the case of
parent companies and subsidiaries of different Member
States (1) be interpreted as meaning that for the purposes of
the directive a French company taking the legal form of a
‘société par actions simplifiée’ may be regarded even for the
years prior to 2005 as ‘company of a Member State’ with the
result that in respect of a profit distribution effected by its
Germany subsidiary in 1999 the former company is entitled
to an exemption from withholding tax in accordance with
Article 5(1) of Directive 90/435/EEC?

2. In the event that Question 1 is answered in the negative:

Inasmuch as Article 2(a) in conjunction with paragraph (f) of
the Annex to Council Directive 90/435/EEC of 23 July 1990
on the common system of taxation applicable in the case of
parent companies and subsidiaries of different Member States
together with Article 5(1) of the same directive in the event
of a profit distribution by a German subsidiary establishes an
exemption from withholding tax in favour of French parent
companies taking the legal
form of a ‘société anonyme’,
‘société en commandite par actions’ or ‘société à respons-
abilite limitee’ not, however, French parent companies taking
the legal form of a ‘société par actions simplifiée’ do such
provisions infringe Articles 43 EC and 48 EC or Article 56(1)
EC and Article 58(1)(a) and (3) EC?

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

(1) OJ 1990 L 225, p. 6.