Case C-157/07: Judgment of the Court (Fourth Chamber) of 23 October 2008 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt für Körperschaften III in Berlin v Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt GmbH (Freedom of establishment — European Economic Area Agreement (EEA) — Tax legislation — Tax treatment of losses incurred by a permanent establishment situated in a Member State of the EEA and belonging to a company having its seat in a Member State of the European Union)
Date: 2008-10-23
Institutions: Court of Justice
Subjects: double taxation, financial loss, interpretation of the law, tax convention, tax on income, tax relief

6.12.2008

EN

Official Journal of the European Union

C 313/5

Re:

Preliminary ruling — Hoge Raad der Nederlanden — Interpreta-
tion of Articles 39 EC and 56 EC — Determination of the
taxable amount for purposes of income tax — National of a
Member State receiving all of his income in that State but
residing in a different Member State — National
legislation
which does not allow for deduction of negative income relating
to a house situate in another Member State

general system for the recognition of higher-education diplomas
awarded on completion of professional education and training
of at least three years' duration (OJ 1989 L 19, p. 16) and
92/51/EEC of 18 June 1992 on a second general system for the
recognition of professional education and training to supple-
ment Directive 89/48/EEC (OJ 1992 L 209, p. 25) — Taking up
the profession of air traffic controller.

Operative part of the judgment

Operative part of the judgment

The Court:

Article 39 EC must be interpreted as precluding national legislation
such as that at issue in the main proceedings, pursuant to which a
Community national who is not resident in the Member State in
which he receives all or almost all of his taxable income cannot, for the
purposes of determining the basis of assessment of that income in that
Member State, deduct negative income relating to a house owned by
him and used as a dwelling in another Member State, whereas a resi-
dent of the first Member State may deduct such negative income for
the purposes of determining the basis of assessment of taxation of his
income.

1. Declares that, by failing to adopt, in connection with the profession
of air traffic controller, the laws, regulations and administrative
provisions necessary to comply with Council Directive 89/48/EEC
of 21 December 1988 on a general system for the recognition of
higher-education diplomas awarded on completion of professional
education and training of at least three years' duration and Council
Directive 92/51/EEC of 18 June 1992 on a second general system
for the recognition of professional education and training to supple-
ment Directive 89/48, the Kingdom of Spain has failed to fulfil its
obligations under those directives;

(1) OJ C 56, 10.3.2007.

2. Orders the Kingdom of Spain to pay the costs.

(1) OJ C 117, 26.5.2007.

Judgment of the Court (Second Chamber) of 16 October
the European Communities v
2008 — Commission of

Kingdom of Spain

(Case C-136/07) (1)

(Failure of a Member State to fulfil obligations — Directives
89/48/EEC and 92/51/EEC — Recognition of diplomas and
professional education and training — Profession of air traffic
controller)

(2008/C 313/07)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain (represented by: M Muñoz Pérez,
Agent)

Judgment of the Court (Fourth Chamber) of 23 October
2008 (reference for a preliminary ruling from the Bundes-
finanzhof — Germany) — Finanzamt für Körperschaften III
am Wannsee-
in Berlin

v Krankenheim Ruhesitz
Seniorenheimstatt GmbH

(Case C-157/07) (1)

(Freedom of establishment — European Economic Area Agree-
ment (EEA) — Tax legislation — Tax treatment of losses
incurred by a permanent establishment situated in a Member
State of the EEA and belonging to a company having its seat
in a Member State of the European Union)

(2008/C 313/08)

Language of the case: German

Referring court

Bundesfinanzhof

Re:

Failure of Member State to fulfil its obligations — Infringement
of Council Directives 89/48/EEC of 21 December 1988 on a

Applicant: Finanzamt für Körperschaften III in Berlin

Parties to the main proceedings

C 313/6

EN

Official Journal of the European Union

6.12.2008

Defendant: Krankenheim Ruhesitz am Wannsee-Seniorenheim-
statt GmbH

Parties to the main proceedings

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
the Agreement on the European
pretation of Article 31 of
Economic Area (OJ 1994 L 1, p. 1) — Double taxation conven-
tion which provides for taxation of profits made by a branch
office in the State where it is established — Deduction from
taxable profit of company principal office of branch office
losses — No possibility for branch office to carry over fiscal
losses to a subsequent period of assessment — Reintegration by
State where company principal office established of
total
deducted losses of branch office

Operative part of the judgment

Article 31 of
the Agreement on the European Economic Area of
2 May 1992 does not preclude a national tax system which, after
having allowed the taking into account of losses incurred by a perma-
nent establishment situated in a State other than the one in which its
principal company is situated, for the purposes of calculating the tax
on that company's income, provides for a tax reintegration of those
losses at the time when that permanent establishment makes profits,
where the State where that same permanent establishment is situated
does not confer any right to carry forward losses incurred by a perma-
nent establishment belonging to a company established in another
State, and where, under a convention for the prevention of double taxa-
tion between the two States concerned, the income of such an entity is
exonerated from taxation in the State in which the principal company
has its seat.

(1) OJ C 129, 9.6.2007.

Judgment of the Court (Grand Chamber) of 21 October
2008 (references for preliminary rulings from the Corte
suprema di cassazione (Italy)) — Alfonso Luigi Marra v
Eduardo De Gregorio (C-200/07), Antonio Clemente
(C-201/07)

(Joined Cases C-200/07 and C-201/07) (1)

(Reference for a preliminary ruling — European Parliament
— Leaflet issued by a Member of the European Parliament
containing insulting remarks — Claim for non-pecuniary
the European
damages — Immunity

of Members

of

Parliament)

(2008/C 313/09)

Language of the cases: Italian

Referring court

Corte suprema di cassazione

Appellant: Alfonso Luigi Marra

Respondents:
Clemente (C-201/07)

Eduardo De Gregorio

(C-200/07), Antonio

Re:

Reference for a preliminary ruling — Corte suprema di cassa-
zione — Interpretation of Article 9 of the Protocol on the Privi-
leges and Immunities of the European Communities (OJ 1967
152, p. 13) and Rule 6(2) of the Rules of Procedure of the
European Parliament (OJ 2005 L 44, p. 1) — Claim for non-
pecuniary damages in relation to insulting remarks made by a
Member of the European Parliament — Competence of the civil
court to rule as to the existence or otherwise of privilege in the
absence of a decision of the European Parliament

Operative part of the judgment

The Community rules relating to the immunity of Members of the
European Parliament must be interpreted as meaning that,
in an
action for damages brought against a Member of
the European
Parliament in respect of opinions he has expressed,

— where the national court which has to rule on such an action has
received no information regarding a request by that Member to the
European Parliament seeking defence of the immunity provided for
in Article 9 of the Protocol on the Privileges and Immunities of
the European Communities of 8 April 1965, it is not obliged to
request the European Parliament to give a decision on whether the
conditions for that immunity are met;

— where the national court is informed of the fact that that Member
has made a request to the European Parliament for defence of that
immunity, within the meaning of Rule 6(3) of the Rules of Proce-
dure of the European Parliament, it must stay the judicial proceed-
ings and request the European Parliament to issue its opinion as
soon as possible;

— where the national court considers that that Member enjoys the
immunity provided for in Article 9 of the Protocol on the Privileges
and Immunities of the European Communities,
it is obliged to
dismiss the action brought against the Member concerned.

(1) OJ C 229, 17.9.2005.