Case C-247/08: Reference for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 9 June 2008 — Gaz de France — Berliner Investissement SA v Bundeszentralamt für Steuern
Date: 2008-06-09
Institutions: Court of Justice
Subjects: interpretation of the law, parent company, subsidiary, tax exemption, tax system

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.