Case C-433/08: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 1 October 2008 — Yaesu Europe BV v Bundeszentralamt für Steuern
Date: 2008-10-01
Institutions: Court of Justice
Subjects: Germany, approximation of laws, assessment of prices, interpretation of the law, turnover

C 313/18

EN

Official Journal of the European Union

6.12.2008

— 2/B., in the alternative, refer both the cases in question back
to the Court of First Instance for it to give another ruling on
the same.

Pleas in law and main arguments

Distortion and misrepresentation of the facts and statements of
the applicant in its pleadings, following also from the material
inaccuracy of the findings of the Court of First Instance (in par-
ticular, paragraphs 30, 44, 46 and 49 of the judgment under
appeal).

2. If the answer to the first question is in the affirmative:

Is the term ‘Signature’ to be understood as meaning that the
application for a refund must be signed by the taxable
person himself or, in regard to a legal person, by its statutory
representative, or is the signature of an agent (for example, a
representative for tax purposes or an employee of the taxable
person) sufficient?

(1) OJ L 331, 1979, p. 11.

Misinterpretation and misapplication of the concept of a chal-
lengeable act, also for confusion, unreasonableness and illogical-
ness, infringement of Article 231 of the EC Treaty and failure to
appreciate the case-law concerning the effects of annulment by
the Community courts of a decision issued by a Community
institution, infringement of the principle of the authority of res
judicata,
the separation of
powers (in particular, paragraphs 43, 44 and 49 of the judg-
ment under appeal).

the principle of

infringement of

Complete absence of preliminary investigations and failure to
rule on a fundamental issue of the dispute (in particular, para-
graph 12 and paragraphs 43 to 51 inclusive of the judgment
under appeal).

Reference for a preliminary ruling from the Bundes-
finanzhof (Germany) lodged on 1 October 2008 — Yaesu
Europe BV v Bundeszentralamt für Steuern

(Case C-433/08)

(2008/C 313/26)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Yaesu Europe BV

Defendant: Bundeszentralamt für Steuern

Questions referred

1. Is the term ‘Signature’ in the specimen in Annex A to the
Eighth Council Directive 79/1072/EEC of 6 December 1979
on the harmonization of the laws of the Member States
relating to turnover taxes — Arrangements for the refund of
value added tax to taxable persons (1) not established in the
territory of the country, which is to be used to submit an
application for a refund of
to
Article 3(a) of the directive, to be to be given a uniform
Community law interpretation?

tax pursuant

turnover

Action brought on 3 October 2008 — Commission of the
European Communities v Portuguese Republic

(Case C-438/08)

(2008/C 313/27)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and M. Teles Romão, Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration that the Portuguese Republic, by imposing
under, specifically, Articles 3(2), 6(1) and 7 of Decree-Law
No 550/99 of 15 December 1999, and point 1(e) of Decree
No 1165/2000 of 9 December 2000, restrictions on the
freedom of establishment of entities of other Member States
intending to carry on in Portugal the activity of vehicle
inspection,
in particular, making the grant of
authorisations subject to the public interest, the requirement
of minimum share capital of EUR 100 000, the limiting of
the undertakings' company objects and the incompatibility
rules with regard to other activities of members, managers
and directors, has failed to fulfil
its obligations under
Article 43 of the EC Treaty;

including,

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

Subordinating the grant of new authorisations to the public
interest constitutes a restriction of freedom of establishment,
given that legal persons from other Member States seeking to
carry on the activity of vehicle inspection in Portugal are subject
to the discretionary power of the competent national authori-
ties, which leads to considerable legal uncertainty as to the
extent of their rights.