Case C-437/08: Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz (Austria) lodged on 3 October 2008 — Österreichische Salinen AG v Finanzamt Linz
Date: 2008-10-03
Institutions: Court of Justice
Subjects: Austria, EU law, economic discrimination, interpretation of the law, third country

24.1.2009

EN

Official Journal of the European Union

C 19/11

Reference for a preliminary ruling from the Unabhänger
Finanzsenat, Außenstelle
on
3 October 2008 — Haribo Lakritzen Hans Riegel
BetriebsgmbH v Finanzamt Linz

(Austria)

lodged

Linz

(Case C-436/08)

(2009/C 19/18)

Language of the case: German

Referring court

Unabhänger Finanzsenat, Außenstelle Linz

Parties to the main proceedings

Applicant: Haribo Lakritzen Hans Riegel BetriebsgmbH

Defendant: Finanzamt Linz

Questions referred

1. Does Community law preclude a national authority — in
order to avoid discriminating against foreign equity holdings
which, unlike domestic (Austrian) equity holdings, are not
the equity
tax exempt under legislation until the size of
holding reaches 25 % (under present legislation 10 %) —
from applying the credit method because the Austrian
Verwaltungsgerichtshof (Administrative Court) has ruled that
this outcome is closest to the (hypothetical) intention of the
legislature, whilst tax exemption would be granted if the
discriminatory 25 % (10 %)
foreign equity
holdings were simply not applied?

threshold for

2. Does Community law preclude: the general exemption of
domestic equity holdings whilst the credit method is applied
to foreign equity holdings of
less than 25 % (10 %) and
shareholders are faced with the impossible or disproportio-
nately costly task of adducing evidence of a previous foreign
charge to (corporation) tax; or

— the grant of exemption to domestic equity holdings of
less than 25 % (10 %) whilst the credit method is applied
to foreign equity holdings of less than 25 % (10 %) and
shareholders are charged with the impossible or dispro-
portionately costly task of adducing evidence; or

— the general exemption of domestic equity holdings and
of foreign equity holdings of 25 % (10 %) or more whilst
the credit method is applied to foreign equity holdings of
less than 25 % (10 %) and shareholders are charged with
the impossible or disproportionately costly task of addu-
cing evidence?

2.1 If the answer to the second question should be in the
negative: Does Community law preclude the imposition
of an obligation on a taxpayer to adduce evidence of a
previous foreign charge to (corporation) tax so as to
obtain relief
from double economic taxation even
though the production of such evidence is an impossible
or disproportionately costly task, when it could be
produced by the authority applying the Directive on
mutual assistance?

3. Does Community law preclude a provision whereby the
credit method is to apply to non-member-country equity
holdings of
less than 25 % (10 %) which fall within the
scope of free movement of capital where the production of
evidence of payment of a previous
foreign charge to
(corporation)
tax is an impossible or disproportionately
costly task because of the small size of the equity holdings,
whilst provision is made for the exemption method to apply
to domestic equity holdings in general — that is to say, irre-
spective of the size of the equity holdings — and relief from
double economic taxation is therefore obtained in any event?

3.1 If the answer to the third question should be in the affir-
mative: Does Community law preclude the refusal of
exemption for income from non-member-country equity
holdings where the size of the equity holding is less
than 25 % (10 %) even though exemption for income
from equity holdings of more than 25 % (10 %) is not
linked to satisfaction of particular requirements compli-
ance with which could be examined only by obtaining
information from the competent authorities of
the
country concerned and exemption is granted in such
cases without any other conditions being attached?

3.2 If the answer to the third question should be in the
negative: Does Community law preclude the refusal of a
credit for foreign corporation tax for income from non-
member-country equity holdings where the size of the
equity holding is less than 25 % (10 %) even though tax
exemption for income from holdings of more than
25 % (10 %) is not linked to satisfaction of particular
requirements compliance with which could be examined
only by obtaining information from the competent
authorities of the country concerned and exemption is
granted in such cases without any other conditions
being attached?

Reference for a preliminary ruling from the Unabhängiger
Finanzsenat, Außenstelle
on
3 October 2008 — Österreichische Salinen AG v
Finanzamt Linz

(Austria)

lodged

Linz

(Case C-437/08)

(2009/C 19/19)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Linz

Parties to the main proceedings

Applicant: Österreichische Salinen AG

Defendant: Finanzamt Linz

C 19/12

EN

Official Journal of the European Union

24.1.2009

Questions referred

1. Does Community law preclude a national authority — in
order to avoid discriminating against foreign equity hold-
ings which, unlike domestic (Austrian) equity holdings, are
not tax exempt under legislation until the size of the equity
holding reaches 25 % (under present legislation 10 %) —
from applying the credit method because the Austrian
Verwaltungsgerichtshof
(Administrative Court) has ruled
that this outcome is closest to the (hypothetical) intention
of
the legislature but not simultaneously permitting a
deduction to be carried forward to subsequent years or a
tax credit to be given for a loss year with regard, firstly, to
the corporation tax to be credited and, secondly, to the
withholding tax to be credited?

1.1 If the answer to the first question should be in the affirma-
tive: Does Community law preclude a refusal to allow a
deduction to be carried forward or a tax credit to be given
in the case of non-member country dividends?

Reference for a preliminary ruling from the Oberver-
waltungsgericht Berlin-Brandenburg (Germany) lodged on
27 October 2008 — Ümit Bekleyen v Land Berlin

(Case C-462/08)

(2009/C 19/20)

Language of the case: German

Referring court

Oberverwaltungsgericht Berlin-Brandenburg

Parties to the main proceedings

Applicant: Ümit Bekleyen

Defendant: Land Berlin

Question referred

Is the second paragraph of Article 7 of Decision No 1/80 of the
EEC-Turkey Association Council on the development of
the
Association to be interpreted as meaning that the right of access
to the labour market and the corresponding right of residence
following the completion of a vocational training course in the
host Member State can also be invoked in a situation in which
the child who was born in the host Member State, but after-
wards returned with her family to the family's country of origin,
returns on her own to the relevant Member State after she has
reached the age of majority in order to start a vocational
training course, at a moment occurring 10 years after her
parents, Turkish nationals who used to be employed in that
Member State, had permanently left that Member State?

Reference for a preliminary ruling from the Audiencia
Provincial de Barcelona (Spain) lodged on 31 October 2008
— Sociedad General de Autores y Editores de España
(SGAE) v Padawan, S.L. and Entidad de Gestión de
(EGEDA),
Derechos de los Productores Audiovisuales

intervener

(Case C-467/08)

(2009/C 19/21)

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Sociedad General de Autores y Editores de España
(SGAE)

Defendant: Padawan, S.L.

Other party: Entidad de Gestión de Derechos de los Productores
Audiovisuales (EGEDA)

Questions referred

1. Does the concept of ‘fair compensation’ in Article 5(2)(b) of
Directive 2001/29 (1) entail harmonisation,
irrespective of
the Member States' right to choose the system of collection
which they deem appropriate for the purposes of giving
effect to the right to fair compensation of intellectual prop-
erty rightholders affected by the adoption of
the private
copying exception or limitation?

2. Regardless of

the system used by each Member State to
calculate fair compensation, must that system ensure a fair
balance between the persons affected, the intellectual prop-
erty rightholders affected by the private copying exception,
to whom the compensation is owed, on the one hand, and
the persons directly or indirectly liable to pay the compensa-
tion, on the other, and is that balance determined by the
reason for the fair compensation, which is to mitigate the
harm arising from the private copying exception.?

3. Where a Member State opts for a system of charging or
levying in respect of digital reproduction equipment, devices
and media,
in accordance with the aim pursued by
Article 5(2)(b) of Directive 2001/29 and the context of that
provision, must
that charge (the fair compensation for
private copying) necessarily be linked to the presumed use of
those equipment and media for making reproductions
covered by the private copying exception, with the result that
the application of the charge would be justified where it may
be presumed that the digital reproduction equipment, devices
and media are to be used for private copying, but not other-
wise?