Case C-541/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 December 2008 — Fokus Invest AG v FIAG Finanzierungsberatung-Immobilientreuhand und Anlageberatung GmbH (FIAG)
Date: 2008-12-04
Institutions: Court of Justice
Subjects: EU Member State, Switzerland, free movement of persons, interpretation of the law, property market

C 55/8

EN

Official Journal of the European Union

7.3.2009

Reference for a preliminary ruling from the Bundes-
gerichtshof (Germany) lodged on 2 December 2008 —
Sylvia Bienek v Condor Flugdienst GmbH

(Case C-525/08)

(2009/C 55/11)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Sylvia Bienek

Defendant: Condor Flugdienst GmbH

Questions referred

1. Does a change in reservation to another flight constitute a
situation covered by Article 4(3) of Regulation (EC)
No 261/2004 of
the
Council of 11 February 2004 establishing common rules on
compensation and assistance to passengers in the event of
denied boarding and of cancellation or long delay of flights,
and repealing Regulation (EEC) No 295/91 (1)?

the European Parliament and of

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

Must that provision also be applied to a change in reserva-
tion which was not instigated by the air carrier, but by the
tour operator alone?

(1) OJ 2004 L 46, p. 1.

Reference for a preliminary ruling from the Hoge Raad der
lodged on 4 December
Nederlanden (The Netherlands)

2008 — X Holding BV v Minister van Financiën

(Case C-538/08)

(2009/C 55/12)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: X Holding BV

Respondent: Minister van Financiën

Questions referred

1. Must Article 11(4) of

the

Second Directive (1)

and
the Sixth Directive (2) be interpreted as
Article 17(6) of
meaning that a Member State wishing to take advantage of
the possibility for which those provisions provide of
(retaining) the exclusion of deduction with respect to cate-
gories of expenditure which are described as ‘providing the
opportunity for private transport’ has satisfied the condition
of designating a category of adequately definable goods and
services?

2. If the answer to the first question is in the affirmative, do
Article 6(2) and Article 17(2) and (6) of the Sixth Directive
leave room for national legislation such as that at issue in
the proceedings, which was adopted before that Directive
entered into force and under which a taxable person may
not deduct in full the VAT paid on the acquisition of certain
goods and services which are used partly for business
purposes and partly for private purposes of the staff, but
may do so only to the extent that the VAT is attributable to
use for business purposes?

(1) Second Council Directive 84/5/EEC of 30 December 1983 on the
approximation of the laws of the Member States relating to insurance
against civil liability in respect of the use of motor vehicles (OJ L 8,
p. 17).

(2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ L 145, p. 1).

Reference for a preliminary ruling from the Oberster
lodged on 4 December 2008 —
Gerichtshof
FIAG Finanzierungsberatung-
Fokus

(Austria)
Invest AG v

Immobilientreuhand und Anlageberatung GmbH (FIAG)

(Case C-541/08)

(2009/C 55/13)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Fokus Invest AG

Defendant:
und Anlageberatung GmbH (FIAG)

FIAG Finanzierungsberatung-Immobilientreuhand

7.3.2009

EN

Official Journal of the European Union

C 55/9

Questions referred

Pleas in law and main arguments

1. Is Article 25 of Annex I to the Agreement between the Euro-
pean Community and its Member States, of the one part,
and the Swiss Confederation, of the other, on the free move-
ment of persons (1) to be interpreted as meaning that the
obligation to treat as nationals for the purposes of the acqui-
immovable property applies only in relation to
sition of
natural persons, but not to companies?

2. If the first question is answered in the affirmative:

Do the provisions of the Wiener Ausländergrunderwerbsge-
setz (Viennese law on the purchase of real property by non-
nationals;
‘WrAuslGEG’) which in the case of acquisition of
immovable property by foreign companies as defined in
point 3 of Paragraph 2 of
the WrAuslGEG require the
production of a certificate attesting to exemption from the
to obtain authorisation (Paragraph 5(4) and
requirement
point 3 of Paragraph 3 of
the WrAuslGEG) constitute a
restriction on the free movement of capital (Article 56 EC)
permitted under Article 57(1) EC in relation to Switzerland
as a third country?

(1) OJ 2002 L 114, p. 6.

The period within which the directive had to be transposed
expired on 15 December 2007.

(1) OJ L 214, p. 29.
(2) OJ L 309, p. 15.

Action brought on 11 December 2008 — Commission of
the European Communities v Republic of Poland

(Case C-551/08)

(2009/C 55/15)

Language of the case: Polish

Action brought on 10 December 2008 — Commission of
the European Communities v Ireland

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell and M. Kaduczak, acting as Agents)

Parties

(Case C-549/08)

(2009/C 55/14)

Defendant: Republic of Poland

Language of the case: English

Form of order sought

Parties

Applicant: Commission of the European Communities (repre-
sented by: P. Dejmek, A.A. Gilly, Agents)

Defendant: Ireland

— declare that, by not adopting the laws, regulations and
administrative provisions necessary to comply with Directive
2005/68/EC of the European Parliament and of the Council
of 16 November 2005 on reinsurance and amending
Council Directives 73/239/EEC, 92/49/EEC as well as Direc-
tives 98/78/EC and 2002/83/EC (1), and in any event by not
informing the Commission of the adoption of those provi-
sions, the Republic of Poland has failed to fulfil its obliga-
tions under Article 64 of that directive;

The applicant claims that the Court should:

— order the Republic of Poland to pay the costs.

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2006/70/EC (1) of 1 August 2006 laying down imple-
menting measures for Directive 2005/60/EC (2) of the Euro-
pean Parliament and of the Council as regards the definition
of a ‘politically exposed person’ and the technical criteria for
simplified customer due diligence and for exemption on
grounds of a financial activity conducted on an occasional
or very limited basis, or in any event by failing to communi-
cate them to the Commission, Ireland has failed to fulfil its
obligations under the Directive;

— order Ireland to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2005/68/EC expired
on 10 December 2007.

(1) OJ L 323 of 9.12.2005, p. 1.