CELEX: C1998/299/13
Language: en
Date: 1998-09-26 00:00:00
Title: JUDGMENT OF THE COURT of 16 July 1998 in Case C-264/96 (reference for a preliminary ruling from the House of Lords): Imperial Chemical Industries plc (ICI) v. Kenneth Hall Colmer (Her Majesty's Inspector of Taxes) (Right of establishment - Corporation tax - Surrender by one company to another company in the same group of tax relief on trading losses - Residence requirement imposed on group companies - Discrimination according to the place of the corporate seat - Obligations of the national court)

C 299/8               EN                Official Journal of the European Communities                                      26.9.98
court has particular difficulty in assessing the misleading             conformity with Community law or to disapply the
nature of the statement or description in question, it may              legislation in a situation falling outside the scope of
have recourse, under the conditions laid down by its own                Community law.
national law, to a consumer research poll or an expert's
report as guidance for its judgment.                               (1) OJ C 269, 14.9.1996.
(1) OJ C 247, 24.8.1996.
(2) OJ L 173, 6.7.1990, p. 5.
                                                                                   JUDGMENT OF THE COURT
                                                                                           (Fifth Chamber)
               JUDGMENT OF THE COURT                                                       of 16 July 1998
                        of 16 July 1998                            in Case C-287/96 (reference for a preliminary ruling from
                                                                   the Bundesfinanzhof): Kyritzer Stärke GmbH v.
in Case C-264/96 (reference for a preliminary ruling from                             Hauptzollamt Potsdam (1)
the House of Lords): Imperial Chemical Industries plc
(ICI) v. Kenneth Hall Colmer (Her Majesty's Inspector of           (Agriculture Ð Common organisation of the markets Ð
                            Taxes) (1)                             Production refunds Ð System of securities Ð Time limits
                                                                       Ð Primary requirement Ð Subordinate requirement)
(Right of establishment Ð Corporation tax Ð Surrender
by one company to another company in the same group of                                      (98/C 299/14)
tax relief on trading losses Ð Residence requirement
imposed on group companies Ð Discrimination according                              (Language of the case: German)
to the place of the corporate seat Ð Obligations of the
                        national court)
                                                                     (Provisional translation; the definitive translation will be
                         (98/C 299/13)
                                                                             published in the European Court Reports)
                (Language of the case: English)                    In Case C-287/96: reference to the Court under Article 177
                                                                   of the EC Treaty from the Bundesfinanzhof for a
                                                                   preliminary ruling in the proceedings pending before that
In Case C-264/96: reference to the Court under Article 177
                                                                   court between Kyritzer Stärke GmbH and Hauptzollamt
of the EC Treaty from the House of Lords (United
                                                                   Potsdam, on the interpretation of Commission Regulation
Kingdom) for a preliminary ruling in the proceedings
                                                                   (EEC) No 2220/85 of 22 July 1985 laying down common
pending before that court between Imperial Chemical
                                                                   detailed rules for the application of the system of
Industries plc (ICI) and Kenneth Hall Colmer (Her
                                                                   securities for agricultural products (2) in conjunction with
Majesty's Inspector of Taxes), on the interpretation of
                                                                   Commission Regulation (EEC) No 1722/93 of 30 June
Articles 5 and 52 of the EC Treaty Ð the Court,
                                                                   1993 laying down detailed rules for the application of
composed of: G. C. Rodríguez Iglesias, President, H.
                                                                   Council Regulations (EEC) No 1766/92 and (EEC)
Ragnemalm, M. Wathelet (Rapporteur) and R. Schintgen,
                                                                   No 1418/76 concerning production refunds in the cereals
Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
                                                                   and rice sectors respectively (3) Ð the Court (Fifth
Almeida, J. L. Murray, D. A. O. Edward, P. Jann, L.
                                                                   Chamber), composed of: C. Gulmann, President of
Sevón and K. M. Ioannou, Judges; G. Tesauro, Advocate
                                                                   Chamber, M. Wathelet, D. A. O. Edward, P. Jann
General; L. Hewlett, Administrator, for the Registrar, has
                                                                   (Rapporteur) and L. Sevón, Judges; P. LeÂger, Advocate
given a judgment on 16 July 1998, in which it has ruled:
                                                                   General; L. Hewlett, Administrator, for the Registrar, has
                                                                   given a judgment on 16 July 1998, in which it has ruled:
1. Article 52 of the EC Treaty precludes legislation of a
    Member State which, in the case of companies                   Article 10(1) of Commission Regulation (EEC) No 1722/
    established in that State belonging to a consortium            93 of 30 June 1993 laying down detailed rules for the
    through which they control a holding company, by               application of Council Regulations (EEC) No 1766/92
    means of which they exercise their right to freedom of         and (EEC) No 1418/76 concerning production refunds in
    establishment in order to set up subsidiaries in other         the cereals and rice sectors respectively is to be interpreted
    Member States, makes a particular form of tax relief           as follows:
    subject to the requirement that the holding company's
    business consists wholly or mainly in the holding of
    shares in subsidiaries that are established in the             Ð the use of a product falling within CN code
    Member State concerned;                                             3505 10 50, as prescribed by that provision,
                                                                        constitutes a primary requirement within the meaning
                                                                        of Article 20(2) of Commission Regulation (EEC)
2. in circumstances such as those in point in the main                  No 2220/85 of 22 July 1985 laying down common
    proceedings, Article 5 of the EC Treaty does not                    detailed rules for the application of the system of
    require the national court to interpret its legislation in          securities for agricultural products,