CELEX: C1996/336/04
Language: en
Date: 1996-11-09 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 27 June 1996 in Case C-107/94 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): P. H. Asscher v. Staatssecretaris van Financiën (Article 52 of the EC Treaty - Requirement of equal treatment - Income tax on non-residents)

No C 336/2              EN                 Official Journal of the European Communities                                       9 . 11 . 96
On a proper construction of the combined nomenclature of              2 . Orders the Italian Republic to pay the costs.
the Common Customs Tariff, in the version annexed to
Commission Regulation (EEC) No 2505/92 of 14 July 1 992               (') OJ No C 229 of 2 . 9 . 1995 .
amending Annexes I and II to Council Regulation (EEC)                 ( 2 ) OJ No L 163 , 1989 , p . 32 .
No 2658/87 on the tariff and statistical nomenclature and             (■') OJ No L 203 , 1989 , p . 50 .
on the Common Customs Tariff, a basic module for the
assembly of a data-processing machine, consisting of a
housing essentially containing two disk drives, is to be
classified, pursuant to General Rule 3 (b) for the
interpretation of the combined nomenclature of the
Common Customs Tariff, under subheading 8471 93 59 as
a 'storage unit', on the basis of the drives it contains.                             JUDGMENT OF THE COURT
                                                                                                ( Fifth Chamber )
(') OJ No C 159 , 24 . 6 . 1995 .
                                                                                                of 27 June 1996
( 2 ) OJ No L 267, 1992 , p . 1 .
                                                                      in Case C-107/94 ( reference for a preliminary ruling
                                                                      from the Hoge Raad der Nederlanden ): P. H. Asscher v.
                                                                                       Staatssecretaris van Financiën (')
                                                                       (Article 52 of the EC Treaty — Requirement of equal
                                                                                 treatment — Income tax on non-residents)
                 JUDGMENT OF THE COURT                                                            ( 96/C 336/04 )
                         ( Fifth Chamber )
                         of 20 June 1996                                                (Language of the case: Dutch)
       in Case C-237/95 : Commission of the European
               Communities v. Italian Republic (')                     (Provisional translation; the definitive translation will be
                                                                                 published in the European Court Reports)
 (Failure to fulfil obligations — Failure to transpose
           Directives 89/369/EEC and 89/429/EEC)
                           ( 96/C 336/03 )                            In Case C-107/94 : reference to the Court pursuant to
                                                                      Article 177 of the EC Treaty from the Hoge Raad der
                                                                      Nederlanden ( Supreme Court of the Netherlands ) for a
                  (Language of the case: Italian)                      preliminary ruling in the proceedings pending before that
                                                                      court between P. H. Asscher and Staatssecretaris van
 (Provisional translation; the definitive translation will be          Financien — on the interpretation of Article 48 of the EEC
           published in the European Court Reports)                   Treaty, now the EC Treaty — the Court ( Fifth Chamber ),
                                                                      composed of: D. A. O. Edward , President of the Chamber,
                                                                      J. -P. Puissochet, J. C. Moitinho de Almeida , C. Gulmann
In Case C-237/95 : Commission of the European
                                                                       and M. Wathelet ( Rapporteur ), Judges; P. Leger,
 Communities ( Agents : Maria Kontou-Durande and Laura
                                                                       Advocate-General ; H. A. Ruhl , Principal Administrator, for
Pignataro ) v. Italian Republic ( Agent : Professor Umberto            the Registrar, gave judgment on 27 June 1996 , the operative
 Leanza, assisted by Pier Giorgio Ferri ) — application for a          part of which is as follows :
declaration that, by failing to adopt or to communicate the
 laws , regulations and administrative provisions necessary to
comply with Council Directive 89/369/EEC of 8 June 1989                 1 . A national of a Member State pursuing an activity as a
 on the prevention of air pollution from new municipal                       self-employed person in another Member State, in which
 waste-incineration plants ( 2 ) and Council Directive                       he resides, may rely on Article 52 of the EC Treaty as
 89/429/EEC of 21 June 1989 on the reduction of air                          against his State of origin, on whose territory he pursues
 pollution from existing municipal waste-incineration                        another activity as a self-employed person, if, by virtue
 plants ( 3 ), the Italian Republic has failed to fulfil its                 of pursuing an economic activity in a Member State
 obligations pursuant to the EC Treaty — the Court ( Fifth                   other than his State of origin, he is, with regard to the
 Chamber ), composed of D. A. O. Edward ( Rapporteur ),                      latter, in a situation which may be regarded as
 President of the Chamber, J. -P. Puissochet, J. C. Moitinho                 equivalent to that of any other person relying as against
 de Almeida, C. Gulmann and P. Jann, Judges; M. B. Elmer,                    the host Member State on the rights and liberties
 Advocate-General ; R. Grass, Registrar, has given a                         guaranteed by the Treaty.
 judgment on 20 June 1996 , in which it :
                                                                       2 . Article 52 of the Treaty is to be interpreted as precluding
  1 . Declares that, by failing to adopt within the prescribed               a Member State from applying to a national of a
       period the laws, regulations and administrative                       Member State who pursues an activity as a
       provisions necessary to comply with Council Directive                 self-employed person within its territory and at the same
       89/369/EEC of 8 June 1989 on the prevention of air                    time pursues another actwity as a self-employed person
       pollution from new municipal waste-incineration                       in another Member State, in which he resides, a higher
       plants, the Italian Republic has failed to fulfil its                 rate of income tax than that applicable to residents
       obligations pursuant to Article 12 ( 1 ) of that                      pursuing the same activity where there is no objective
       Directive:                                                            difference between the situation of such taxpayers and
 ---pagebreak--- 9 . 11 . 96            EN                 Official Journal of the European Communities                                    No C 336/3
     that of taxpayers who are resident or treated as such to        — the financial years of the two companies coincide,
     justify that difference in treatment.
                                                                     — the subsidiary 's annual accounts for the financial year in
3 . Article 52 of the Treaty precludes a Member State from                 question were adopted by the general meeting before
     taking account, by means ofa higher rate of income tax,               completion of the audit of the parent company 's annual
     of the fact that, by virtue of the relevant provisions of             accounts for that year,
     Council Regulation (EEC) No 1408/71 of 14 June 1971
     on the application of social security schemes to                — the subsidiary 's annual accounts for the financial year in
     employed persons and their families moving within the                 question, as adopted by its general meeting, show that
     Community, concerning the determination of the                        on the subsidiary 's balance-sheet date — namely the last
     applicable legislation, the taxpayer is not obliged to pay            day of that financial year — the subsidiary appropriated
     contributions to its national social insurance scheme.                profits to the parent company, and
     The fact that, also by virtue of Regulation (EEC)
     No 1408/71 , the taxpayer is insured under the social           — the national court is satisfied that the subsidiary 's annual
     security scheme of the State in which he resides is                   accounts for the financial year in question give a true and
     irrelevant in that regard.                                            fair view of its assets and liabilities, financial position
                                                                           and profit or loss,
(>) OJ No C 132 , 14 . 5 . 1994 .
                                                                     it is not contrary to the rule laid down in Article 31 (1 ) (c)
                                                                     (aa) of the fourth Council Directive 78/660/EEC of 25 July
                                                                     1 978 based on Article 54 (3) (g) of the Treaty on the annual
                                                                     accounts of certain types of companies, as amended by the
                                                                     seventh Council Directive 83/349/EEC of 13 June 1983
               JUDGMENT OF THE COURT                                 based on Article 54 (3) (g) of the Treaty on consolidated
                        ( Fifth Chamber)                             accounts, for the national court to consider that the profits
                        of 27 June 1996                              in question must be entered in the parent company 's balance
                                                                     sheet for the financial year in respect of which they were
in Case C-234/94 (reference for a preliminary ruling from            appropriated by the subsidiary.
the Bundesgerichtshof): Waltraud Tomberger v. Gebriider
                  von der Wettern GmbH (')
                                                                     (') OJ No C 288 , 15 . 10 . 1994 .
(Directive 78/660/EEC — Annual accounts — Balance                    ( 2 ) OJ No L 222 , 1978 , p . 11 .
            sheet — Date at which profit is made)                    ( 3 ) OJ No L 193 , 1983 , p . 1 .
                          ( 96/C 336/05 )
                (Language of the case: German)
(Provisional translation; the definitive translation will be                         JUDGMENT OF THE COURT
          published in the European Court Reports)
                                                                                              ( Fifth Chamber )
In Case C-234/94 : reference to the Court under Article 177                                   of 27 June 1996
of the EC Treaty from the Bundesgerichtshof ( Federal Court          in Case C-240/95 ( reference for a preliminary ruling from
of Justice ) for a preliminary ruling in the proceedings             the Cour d'Appel , Metz ( France )): Criminal proceedings
pending before that court between Waltraud Tomberger v.                                   against Remy Schmit ( 1 )
Gebriider von der Wettern GmbH — on the interpretation
of Articles 31 ( 1 ) and 59 of the fourth Council Directive          (Free movements of goods — Motor vehicles — National
78/660/EEC of 25 July 1978 based on Article 54 ( 3 ) ( g) of         system of model-year dates — Discrimination against
the Treaty on the annual accounts of certain types of                                         parallel imports)
companies ( 2 ), as amended by the seventh Council Directive                                    ( 96/C 336/06 )
83/349/EEC of 13 June 1983 based on Article 54 ( 3 ) ( g ) of
the Treaty on consolidated accounts ( 3 ), the Court ( Fifth                          (Language of the case: French)
Chamber ), composed of: D. A. O. Edward ( Rapporteur ),
President of the Chamber, J. -P. Puissochet, J. C. Moitinho
                                                                     (Provisional translation; the definitive translation will be
de Almeida, C. Gulmann and M. Wathelet, Judges; G.
                                                                                published in the European Court Reports)
Tesauro, Advocate-General ; H. von Holstein, Deputy
Registrar, has given a judgment on 27 June 1996 in which it
rules :                                                              In Case C-240/95 : reference to the Court under Article 177
                                                                     of the EC Treaty by the Cour d'Appel ( Cour of Appeal ),
Where:                                                               Metz ( France ), for a preliminary ruling in the criminal
                                                                     proceedings before that court against Remy Schmit on
— one company (the parent company) is the sole                       Article 30 of the EC Treaty — the Court ( Fifth Chamber ),
    shareholder in another company (the subsidiary), and             composed of D. A. O. Edward, President of the Chamber,
    controls it,                                                    J. -P. Puissochet, C. Gulmann, P. Jann and M. Wathelet
                                                                     ( Rapporteur ), Judges, Advocate-General : M. B. Elmer,
— under national law, the parent company and the                     Registrar : L. Hewlett, Administrator, gave a judgment on
    subsidiary form a group ,                                        27 June 1996 , the operative part of which is as follows :