Case C-318/07: Judgment of the Court (Grand Chamber) of 27 January 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Hein Persche v Finanzamt Lüdenscheid (Free movement of capital — Income tax — Deduction of gifts to bodies recognised as charitable — Deduction restricted to gifts to national bodies — Gifts in kind — Directive 77/799/EEC — Mutual assistance by the competent authorities of the Member States in the field of direct taxation)
Date: 2009-01-22
Institutions: Court of Justice
Subjects: EU Member State, direct tax, donation, free movement of capital, interpretation of the law, tax on income

C 69/8

EN

Official Journal of the European Union

21.3.2009

Judgment of the Court (Grand Chamber) of 27 January
2009 (reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany)) — Hein Persche v Finanzamt Lüdensc-
heid

requirements imposed by that legislation for the grant of such a
benefit.

(Case C-318/07) (1)

(1) OJ C 247, 20.10.2007.

(Free movement of capital — Income tax — Deduction of
gifts to bodies recognised as charitable — Deduction restricted
to gifts to national bodies — Gifts in kind — Directive
77/799/EEC — Mutual assistance by the competent authori-
ties of the Member States in the field of direct taxation)

(2009/C 69/11)

Language of the case: German

Judgment of the Court (First Chamber) of 22 January 2009
(reference for a preliminary ruling from the Bundes-
finanzhof — Germany) — STEKO Industriemontage
GmbH v Finanzamt Speyer-Germersheim

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Hein Persche

Defendant: Finanzamt Lüdenscheid

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
pretation of the third paragraph of Article 5 EC, Article 56 EC
and Council Directive 77/799/EEC of 19 December 1977
concerning mutual assistance by the competent authorities of
the Member States in the field of direct taxation (OJ 1977 L 336,
p. 15) — National legislation under which the grant of the tax
advantage for gifts to bodies pursuing objectives of public
interest
is conditional upon the donee being established in
national territory — Applicability of the rules of the EC Treaty
on the free movement of capital to gifts in kind, in the form of
goods of daily use, made by a national of a Member State to
bodies pursuing charitable objectives and having their seat in
another Member State

(Case C-377/07) (1)

(Corporation tax — Transitional provisions — Deduction of
the depreciation of holdings in non-resident companies)

(2009/C 69/12)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: STEKO Industriemontage GmbH

Defendant: Finanzamt Speyer-Germersheim

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
pretation of Article 56 EC — Corporation tax — Transitional
provisions for the year 2001 prohibiting a company from
deducting the depreciation in value of its foreign shareholdings

Operative part of the judgment

Operative part of the judgment

1. Where a taxpayer claims, in a Member State, the deduction for tax
purposes of gifts to bodies established and recognised as charitable
in another Member State, such gifts come within the compass of
the provisions of the EC Treaty relating to the free movement of
capital, even if they are made in kind in the form of everyday
consumer goods.

2. Article 56 EC precludes legislation of a Member State by virtue of
which, as regards gifts made to bodies recognised as having chari-
table status, the benefit of a deduction for tax purposes is allowed
only in respect of gifts made to bodies established in that Member
State, without any possibility for the taxpayer to show that a gift
made to a body established in another Member State satisfies the

In circumstances such as those of the main proceedings, in which a
resident capital company has a holding of less than 10 % in another
capital company, Article 56 EC must be interpreted as precluding a
prohibition on the deduction of reductions in profit in connection with
such a holding which enters into force earlier with regard to a holding
in a non-resident company than with regard to a holding in a resident
company.

(1) OJ C 283, 24.11.2007.