CELEX: C1998/234/10
Language: en
Date: 1998-07-25 00:00:00
Title: JUDGMENT OF THE COURT of 12 May 1998 in Case C-336/96 (reference for a preliminary ruling from the Tribunal Administratif, Strasbourg): Mr and Mrs Robert Gilly v Directeur des Services Fiscaux du Bas-Rhin (Articles 6, 48 and 220 of the EC Treaty - Equal treatment - Bilateral convention for the avoidance of double taxation - Frontier workers)

C 234/6               EN                  Official Journal of the European Communities                                      25.7.98
within the meaning of the second paragraph of Article 58             proceedings pending before that court between Mr and
of the Treaty, in respect of the formation of public limited         Mrs Robert Gilly and Directeur des Services Fiscaux du
liability companies and the maintenance and alteration of            Bas-Rhin Ð on the interpretation of Articles 6, 48 and
their capital, with a view to making such safeguards                 220 of the EC Treaty Ð the Court, composed of: G. C.
equivalent (OJ L 26 of 30.1.1977, p. 1), and on the                  Rodríguez Iglesias, President, M. Wathelet, (Rapporteur)
abusive exercise of a right arising from a provision of              and R. Schintgen, (Presidents of Chambers), G. F.
Community law, the Court, composed of: G. C. Rodríguez               Mancini, J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L.
Iglesias, President, C. Gulmann, H. Ragnemalm and M.                 Murray, J.-P. Puissochet, G. Hirsch, L. Sevón and K. M.
Wathelet (Presidents of Chambers), G. F. Mancini, J. C.              Ioannou, Judges; D. Ruiz-Jarabo Colomer, Advocate
Moitinho de Almeida, P. J. G. Kapteyn, (Rapporteur), J. L.           General; H. A. Rühl, Principal Administrator, for the
Murray, D. A. O. Edward, J.-P. Puissochet, G. Hirsch, P.             Registrar, has given a judgment on 12 May 1998, in
Jann and L. Sevón, Judges; G. Tesauro, Advocate General;             which it has ruled:
H. A. Rühl, Principal Administrator, for the Registrar, has
given a judgment on 12 May 1998, in which it has ruled:              1. The second indent of Article 220 of the EC Treaty
                                                                          does not have direct effect.
Community law does not preclude national courts from
applying a provision of national law in order to assess              2. On a proper construction, Article 48 of the EC Treaty
whether a right arising from a provision of Community                     does not preclude the application of provisions such as
law is being exercised abusively. However, where such an                  those in Articles 13(5)(a), 14(1) and 16 of the
assessment is made, a shareholder relying on Article 25(1)                Convention signed in Paris on 21 July 1959 between
of the Second Council Directive 77/91/EEC of                              the French Republic and the Federal Republic of
13 December 1976 on coordination of safeguards which,                     Germany for the avoidance of double taxation, as
for the protection of the interests of members and others,                amended by the protocols signed in Bonn on 9 June
are required by Member States of companies within the                     1969 and 28 September 1989, under which the tax
meaning of the second paragraph of Article 58 of the                      regime applicable to frontier workers differs depending
Treaty, in respect of the formation of public limited                     on whether they work in the private sector or the
liability companies and the maintenance and alteration of                 public sector and, where they work in the public
their capital, with a view to making such safeguards                      sector, on whether or not they have only the
equivalent, cannot be deemed to be abusing the right                      nationality of the State of the authority employing
arising from that provision merely because the increase in                them, and the regime applicable to teachers differs
capital contested by him has resolved the financial                       depending on whether their residence in the State in
difficulties threatening the existence of the company                     which they are teaching is for a short period or not.
concerned and has clearly ensured to his economic benefit,
or because he has not exercised his preferential right under         3. On a proper construction, Article 48 of the Treaty
Article 29(1) of that directive to acquire new shares issued              does not preclude the application of a tax credit
on the increase in capital at issue.                                      mechanism such as that provided for in
                                                                          Article 20(2)(a)(cc) of the said convention.
(1) OJ C 40 of 8.2.1997.
                                                                     (1) OJ C 370 of 7.12.1996.
               JUDGMENT OF THE COURT
                       of 12 May 1998                                               JUDGMENT OF THE COURT
                                                                                            (Third Chamber)
in Case C-336/96 (reference for a preliminary ruling from
the Tribunal Administratif, Strasbourg): Mr and Mrs                                         of 14 May 1998
Robert Gilly v Directeur des Services Fiscaux du Bas-
                                                                     in Case C-48/96 P: Windpark Groothusen GmbH & Co.
                            Rhin (1)
                                                                              Betriebs KG v Commission of the European
(Articles 6, 48 and 220 of the EC Treaty Ð Equal                                             Communities (1)
treatment Ð Bilateral convention for the avoidance of
                                                                     (Appeal Ð Financial support in the energy sector Ð
            double taxation Ð Frontier workers)
                                                                     Thermie programme Ð Right to full legal protection Ð
                         (98/C 234/10)                                Duty to state reasons Ð Right to a hearing Ð Discretion)
                                                                                              (98/C 234/11)
                (Language of the case: French)
                                                                                    (Language of the case: German)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                     (Provisional translation; the definitive translation will be
                                                                               published in the European Court Reports)
In Case C-336/96: reference to the Court under Article 177
of the EC Treaty from the Tribunal Administratif,                    In Case C-48/96 P: Windpark Groothusen GmbH & Co.
Strasbourg, France, for a preliminary ruling in the                  Betriebs KG, a company governed by German law,