CELEX: C1995/074/06
Language: en
Date: 1995-03-25 00:00:00
Title: Reference for a preliminary ruling from the Gerechtshof, 's-Hertogenbosch, by order of that court of 30 December 1994 in the case of F. C. Terhoeve v. Inspecteur der Belastingdienst Particulieren/Ondernemingen buitenland (Case C-18/95)

No C 74/4                EN                  Official Journal of the European Communities                                       25 . 3 . 95
who requests tax exemption for transactions within the                       ( b ) If question (a ) is answered in the affirmative, is that
meaning of the provision performs those transactions on                             presumption rebuttable or irrebuttable ?
behalf of the financial institution in whose name the service
is performed ?                                                               (c ) If the presumption in question is rebuttable, is its
                                                                                    possible rebuttal governed solely by national
Question 6                                                                          procedural law, in particular the rules of evidence
                                                                                    of the     Member      State  concerned,    or    does
After the plaintiff's reorganization, is it significant as far as                   Community law also lay down requirements in that
application of Article 13 B (d ) Nos 3 to 5 is concerned that                       regard ?
the services in question are now provided by a company
which supplies the services to the associated financial                     ( d) If Community law makes the rebuttal of such a
institutions ?                                                                      presumption subject to certain requirements, what
                                                                                    significance attaches in the present case to the
It will be noted that the said services are invoiced by the                         following circumstances:
company to the plaintiff which in turn invoices its financial
institution members .                                                               — the respondent authority has stated that, of the
                                                                                        very much broader category of taxpayers
                                                                                        residing abroad, almost one half are its own
(*) Sixth Council Directive ( 77/388/EEC ) of 17 May 1977 on the
                                                                                        nationals, without adducing any evidence in
     harmonization of the laws of the Member States relating to
     turnover taxes — Common system of value added tax: uniform                         support of that assertion,
     basis of assessment ( OJ No L 145 , p. 1 ).
(2 ) Essentially electronic data-handling for SDC's members and                     — the      appellant,      who     pleads    indirect
     other financial institutions .                                                     discrimination based on nationality, has not
                                                                                        contested the correctness of that assertion by
                                                                                        the authority,
                                                                                    — the respondent authority is in an appreciably
                                                                                        better position than the appellant to collect
                                                                                        information which may possibly rebut the
Reference for a preliminary ruling from the Gerechtshof,                                aforementioned presumption ?
's-Hertogenbosch, by order of that court of 30 December
1994 in the case of F. C. Terhoeve v. Inspecteur der
  Belastingdienst Particulieren/Ondernemingen buitenland                3 . Is there any rule of Community law precluding a
                                                                            Member State, regardless of any question of ( indirect)
                            Case C-18/95 )                                  discrimination based on nationality, from imposing, in a
                             ( 95/C 74/06 )                                 given year, a heavier social security contributions
                                                                            burden on an employee who moves his residence during
Reference has been made to the Court of Justice of the                      that year from that Member State to another Member
European Communities by order of the Gerechtshof                            State, or' vice versa, than on an employee who, in
                                                                            otherwise similar circumstances, maintains his residence
( Regional Court of Appeal), 's-Hertogenbosch of
30 December 1994, which was received at the Court                           throughout the whole year in a single Member State ?
Registry on 23 January 1995 , for a preliminary ruling in the
case of F. C. Terhoeve v. Inspecteur der Belastingdienst               4 . If the imposition of a heavier contributions burden, as
Particulieren/Ondernemingen buitenland on the following                     referred to in the previous question, is in principle
questions:                                                                  incompatible with Article 7 or Article 48 (2 ) of the EEC
                                                                            Treaty, or with any other rule of Community law, can it
1 . Are the provisions of Community law on freedom of                       be justified by one or more of the following
      movement for workers applicable to a national of a                    circumstances, albeit that they are not regarded as
      Member State who moves his residence in the course of a               connected with each other :
      year from another Member State to the Member State of
     which he is a national and who is successively employed                — the measure results from legislation whereby the
      in that year in each of those Member States, and who                        levying of income tax and social security
      undeniably earned most of his income during that year                       contributions is intended, for the sake of
      in one of the two Member States ?                                           simplification, to coincide to a very great extent, if
                                                                                  not entirely,
2. (a) Does it follow from Community law, in particular
           Articles 7 and 48 (2 ) of the EEC Treaty and                     — solutions which, whilst maintaining that coherence,
           Article 7 (2 ) of Regulation ( EEC ) No 1612/68 , that                 seek to avoid the imposition of the heavier
           in the application of legislation operating to the                     contributions referred to above, result in technical
           disadvantage of emigrants and immigrants as                            problems of implementation or in possible
           regards liability to make social security                              over-compensation,
           contributions there is a presumption that such
           disadvantage mainly affects nationals of other                   — in certain cases, albeit not in the present case, joint
           States ?                                                               liability to income tax and social security
 ---pagebreak--- 25 . 3 . 95              EN                 Official Journal of the European Communities                                   No C 74/5
          contributions is lower for immigrants and emigrants          Reconsider the claim of the Appellant and:
          in the year in which they move than for persons who,
          in otherwise similar circumstances, retain the same          1 . order the Commission to pay to the Appellant a total
          residence throughout the whole year ?                             amount of ECU 4 389 498,40,
5 . (a ) If a heavier contributions burden, as referred to in               interest at the rate of 8 % as of 6 July 1992,
           question 3 , is incompatible with Article 7 or
           Article 48 ( 2 ) of the EEC Treaty, or with any other            legal costs and expenses including legal fees,
           rule of Community law, should there be taken into
           account, in determining whether in any specific case        2 . SUBSIDIARILY,
           a heavier burden is actually involved, only income
           from employment or, in addition, other income                    order the Commission to pay to the Appellant the
           received by the person concerned, such as profits                amount of ECU 2 504 280,07 representing:
           from real property ?
                                                                             (a ) the balance of ECU 148 192,09 for incorrect
     ( b ) If other income apart from earnings from                                processing of invoices;
           employment is to be left out of consideration, how
            is it to be determined whether, and to what extent,              ( b ) the undisputed balance of ECU 483 830,65 for
           the levying of contributions on income from                             pending invoices;
           employment places the migrant worker concerned
            at a disadvantage ?                                              (c) the compensatory costs arising out of cancellation
                                                                                   of the Contract i.e. ECU 1 922 258 ;
6 . ( a ) If in the present case there was an infringement of
            any rule of Community law, is the national court                 interests at the rate of 8 % as of 6 July 1992;
            obliged to nullify that infringement even if to do so
            would require a choice between different                         legal costs and expenses including legal fees.
            alternatives each of which entails advantages and
            disadvantages ?                                            Pleas in law and main arguments adduced in support:
     ( b) If the national court in this case does nullify an
            infringement of EC law, does Community law                 First bead of claim — non-payment of certain invoices
            provide any directions as to the choice which the
            national court should make between different               In finding that the Commission delegate was entitled to
            conceivable solutions ?                                    refuse to endorse certain invoices relating to price increases
                                                                       for materials and to the increased unit-price of the sub-base
                                                                       for the access roads to the bridges whose construction was
                                                                       the subject of the contract, the Court of First Instance
                                                                       incorrectly interpreted the facts at its disposal and this led to
                                                                       an improper application of the law.
Appeal brought on 26 January 1995 by San Marco Impex
Italians SRL against the judgment delivered on                         The Court of First Instance misapplied the rules governing
16 November 1994 by the Fifth Chamber of the Court of                  the contract for the Juba and Shebelli bridges when it held
First Instance of the European Communities in case                     that the Appellant was not contractually obliged to comply
T-451/93 between San Marco Impex Italiana SRL and the                  with and adhere strictly to the instructions given by
           Commission of the European Communities                      Consulint, the consulting engineers hired by the Somali
                           Case C- 19/95 P)                            government to supervise the works .
                             ( 95/C 74/07)
                                                                       The Commission misapplied the rules governing the
An appeal against the judgment delivered on 16 November                contract in its processing of the invoices and should have
1994 by the Fifth Chamber of the Court of First Instance of            been held liable by the Court of First Instance for this
the European Communities in case T-451/93 between San                  obviously wrongful act.
Marco Impex Italiana SRL and the Commission of the
European Communities, was brought before the Court of                  The Appellant's legitimate expectations were breached:
Justice of the European Communities on 26 January 1995
by San Marco Impex Italiana SRL, represented by Lucette                ( a) by the delegate in refusing to endorse the invoices and
Defalque, of the Brussels Bar, with an address for service in                  by the Commission and its delegate in refusing payment
Luxembourg at the Chambers of Alex Schmitt, 62 Avenue                          of endorsed invoices;
Guillaume .
                                                                       ( b ) by the Commission in refusing to sign Addendum No 1 ,
The Appellant claims that the Court should:                                    which it had prepared after having announced the grant
                                                                               of the funds;
Review the Decision of 16 November 1994 of the Court of
First Instance in Case T-451/93 ;                                              and