CELEX: C1999/001/11
Language: en
Date: 1999-01-04 00:00:00
Title: Reference for a preliminary ruling from the Bundesfinanzhof (Federal Finance Court) by order of that court of 27 August 1998 in the case of Grundstückgemeinschaft Schloßstraße GbR v. Finanzamt Paderborn (Case C-396/98) (1999/C 1/11)

C 1/6                EN                 Official Journal of the European Communities                                 4.1.1999
employed in that State for at least three years; however, it       on 1 November 1998 by the Commission of the European
is not required that the parent in question should still           Communities, represented by R. B. Wainwright, Principal
work or be resident in the Member State in question at the         Legal Adviser, and O. Couvert-CasteÂra, a national civil
time when his child wishes to gain access to the                   servant on secondment to its Legal Service, acting as
employment market there.                                           Agents, with an address for service in Luxembourg at the
                                                                   Office of Carlos Gómez de la Cruz, Wagner Centre,
(1) OJ C 228, 26.7.1997.                                           Kirchberg.
                                                                   The Commission of the European Communities claims
                                                                   that the Court should:
Reference for a preliminary ruling from the Hoge Raad              Ð declare that, by failing to adopt or, in any event, by
der Nederlanden by judgment of that court of 30 October                failing to communicate to the Commission the laws,
1998 in the case of 1. Assco Gerüste GmbH and                          regulations and administrative measures necessary in
2. R. Van Dijk, trading as Assco Holland Steigers Plettac              order to comply with Commission Directive 95/12/EC
Nederland, against 1. Wilhelm Layher GmbH & Co and                     of 23 May 1995 implementing Council Directive
                         2. Layher BV                                  92/75/EEC with regard to energy labelling of
                                                                       household washing machines (1), the Kingdom of
                      (Case C-392/98)
                                                                       Belgium has failed to fulfil its obligations under that
                        (1999/C 1/09)                                  directive;
Reference has been made to the Court of Justice of the             Ð order the Kingdom of Belgium to pay the costs.
European Communities by judgment of the Hoge Raad
der Nederlanden (Supreme Court of the Netherlands) of
30 October 1998, received at the Court Registry on                 Pleas in law and main arguments adduced in support:
5 November 1998, for a preliminary ruling in the case of
1. Assco Gerüste GmbH and 2. R. Van Dijk, trading as               Under the third paragraph of Article 189 and the first
Assco Holland Steigers Plettac Nederland, against 1.               paragraph of Article 5 of the EC Treaty, Member States
Wilhelm Layher GmbH & Co and 2. Layher BV on the                   are required to adopt the necessary measures in order to
following questions:                                               implement directives addressed to them prior to the expiry
                                                                   of the time-limit prescribed for doing so. The time-limit in
1. Does the jurisdiction of the Court of Justice to                question expired on 1 March 1996 but the Kingdom of
    interpret Article 50 of the TRIPs Agreement also               Belgium has not adopted the necessary measures.
    extend to the provisions of that article which do not
    concern provisional measures to prevent infringement           (1) OJ L 136, 21.6.1995, p. 1.
    of trade-mark rights?
2. Does Article 50 of the TRIPs Agreement, in particular
    Article 50(6), have direct effect?
3. Where an action lies under national civil law against           Reference for a preliminary ruling from the
    the copying of an industrial design, on the basis of the       Bundesfinanzhof (Federal Finance Court) by order of
    general rules concerning wrongful acts, and in                 that court of 27 August 1998 in the case of
    particular those relating to unlawful competition, must        Grundstückgemeinschaft Schloûstraûe GbR v. Finanzamt
    the protection thus afforded to the holder of the right                                   Paderborn
    be regarded as an intellectual property right' within
    the meaning of Article 50(1) of the TRIPs Agreement?                                  (Case C-396/98)
                                                                                           (1999/C 1/11)
                                                                   Reference has been made to the Court of Justice of
                                                                   the European Communities by an order of the
Action brought on 5 November 1998 by the Commission                Bundesfinanzhof (Federal Finance Court) of 27 August
of the European Communities against the Kingdom of                 1998, which was received at the Court Registry on
                            Belgium                                6 November 1998, for a preliminary ruling in the case of
                                                                   Grundstückgemeinschaft Schloûstraûe GbR v. Finanzamt
                      (Case C-394/98)
                                                                   Paderborn on the following questions:
                        (1999/C 1/10)
                                                                   According to the case-law of the Court of Justice (Case
An action against the Kingdom of Belgium was brought               C-37/95 (1) Ghent Coal Terminal NV, in which reference is
before the Court of Justice of the European Communities            made to Case C-110/94 (2) INZO), a taxable person can
 ---pagebreak--- 4.1.1999              EN                Official Journal of the European Communities                                     C 1/7
retain the right to deduct tax charged on goods and                    and, in particular, with Articles 6, 52, 58 and/or
services where, by reason of circumstances beyond his                  73(b) of the EC Treaty for the legislation of a
control, he has not made use of those goods and services               Member State to permit a group income election
for the purpose of carrying out taxable transactions.                  (allowing distributions to be paid by a subsidiary
                                                                       to its parent without accounting for advance
                                                                       corporation tax (ACT')) only where both the
                                                                       subsidiary and parent are resident in that Member
According to that principle, does a taxable person also                State?
retain the right to deduct tax if he does in fact use the
goods or services to carry out (leasing) transactions but,
following a change in the law, is no longer entitled, after
acquiring the goods or services, to opt to waive the tax           2.  If the answer to Question 1 is No', do the
exemption for the transactions carried out with them, and              above-mentioned provisions of the EC Treaty give
so cannot in fact carry out any taxable transactions?                  rise to a restitutionary right to a resident subsidiary
                                                                       of a parent company resident in another Member
                                                                       State and/or the said parent to claim a sum of money
                                                                       by way of interest on the ACT which the subsidiary
In such a case, where there is a subsequent change in                  paid on the basis that the national laws did not allow
circumstances, does the right to deduct tax also continue              it to make a group income election, or can such a
to exist if, under national law, the tax assessments were              sum only be claimed, if at all, by way of an action
allowed to be subject to a subsequent review, enabling a               for damages pursuant to the principles laid down by
quick tax assessment to be made solely on the basis of                 the Court of Justice in Joined Cases C-46/93 and
information supplied by the taxable person, but giving the             C-48/93 Brasserie du Pecheur SA v. Federal Republic
revenue authority the right to correct the tax assessment              of Germany and R v. Secretary of State of Transport
in every respect on the basis of factual and legal                     Ex Parte Factortame and Others [1996] ECR I-1029
considerations?                                                        and R v. Secretary of State for Social Security ex
                                                                       parte Eunice Sutton (2) [1997] ECR I-2163 and in
                                                                       either case is the national court obliged to grant a
(1) [1998] ECR I-17.
(2) [1996] ECR I-857.                                                  remedy even if under national law interest cannot be
                                                                       awarded (whether directly or by way of restitution or
                                                                       damages) on principal sums which are no longer
                                                                       owing to the plaintiff?
                                                                   3.  In the circumstances set out in the Order for
                                                                       Reference is it consistent with the above mentioned
Reference for a preliminary ruling made by the High
                                                                       provisions of the EC Treaty for the authorities of one
Court of Justice (England and Wales), Chancery Division,
                                                                       Member State to deny any tax credit to a company
by order of that court of 2 October 1998 in the cases of
                                                                       resident in another Member State when it grants such
1. Metallgesellschaft Limited, 2. Metallgesellschaft AG
                                                                       credits to resident companies and to companies
and Metallgesellschaft Handel & Beteiligungen AG, 3. The
                                                                       resident in certain other Member States by virtue of
Metal and Commodity Company Limited individually
                                                                       the terms of its double taxation conventions with
against Commissioners of Inland Revenue and H. M.
                                                                       those other Member States?
                       Attorney General
                       (Case C-397/98)
                        (1999/C 1/12)                              4.  If the answer to Question 3 above is No', and was
                                                                       the first Member State at all material times obliged to
                                                                       make a tax credit available to such company on the
                                                                       same terms as to resident companies or as to
Reference has been made to the Court of Justice of the                 companies resident in Member States with provision
European Communities by an order of the High Court of                  for such credits in their double taxation conventions?
Justice (England and Wales), Chancery Division, of
2 October 1998, which was received at the Court Registry
on 6 November 1998, for a preliminary ruling in the cases
of 1. Metallgesellschaft Limited, 2. Metallgesellschaft AG         5.  Is a Member State entitled to plead in answer to such
and Metallgesellschaft Handel & Beteiligungen AG, 3.                   a claim for restitution, tax credit or damages, that the
The Metal and Commodity Company Limited individually                   Plaintiffs are not entitled to recover, or that the
against Commissioners of Inland Revenue and H. M.                      Plaintiffs' claim should be reduced, on the grounds
Attorney General, on the following questions:                          that, despite the terms of the national statute which
                                                                       prevented them from doing so as a matter of national
                                                                       law they ought to have made a group income
                                                                       election, or claimed a tax credit and to have appealed
1.    In the circumstances set out in the Order for                    to the Commissioners and, if necessary, the Courts
      Reference (1), is it consistent with Community law               against the decision of the Inspector of Taxes refusing