CELEX: C1995/074/04
Language: en
Date: 1995-03-25 00:00:00
Title: References for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio - Sezione II - by orders of that court of 19 October 1994 in the case of (1) Radio Torre, (2) Rete A Srl, (3) Vallau Italiana Promomarket Srl, (4) Radio Italia Solo Musica Srl and Others, (5) GETE (Tele Nova), (6) Toscana TV and Othres, and (7) Nuova Antenna Tre SpA and Others v. Ministero delle Poste e Telecommunicazioni (Cases C-328/94, C-329/94, C-337/94, C-338/94 and C-339/94, C-21/95 and C-22/95)

No C 74/2           | EN 1                 Official Journal of the European Communities                                          25 . 3 . 95
     which tax is to be levied on the income received by him           with      the    Bundesanstalt      fur   Arbeit,   the      Bundes­
     within its territory since that Article does not allow a          versicherungsanstalt fur Angestellte und Mr Borge Wandahl
    Member State, as regards the collection of direct taxes,           as joined parties in the main proceedings — on the
     to treat a national ofanother Member State employed in            interpretation of Article 14 ( 1 ) ( a) and (2 ) (b) (i ) of Council
    the territory ofthe first State in the exercise ofhis right of     Regulation 1408/71 of 14 June 1971 on the application of
    freedom of movement less favourably than one of its                social security schemes to employed persons, to
    own nationals in the same situation.                               self-employed persons and to members of their families
                                                                       moving within the Community and Article 12a of Council
2 . Article 48 of the Treaty must be interpreted as                    Regulation No 574/72 of 21 March 1972 laying down the
    precluding the application of rules of a Member State              procedure for implementing Regulation (EEC ) No 1408/71 ,
    under which a worker who is a national of, and resides             in the versions codified by Council Regulation (EEC )
    in, another Member State and is employed in the first              No 2001/83 of 2 June 1983 (2) — the Court ( Second
    State is taxed more heavily than a worker who resides in           Chamber), composed of F. A. Schockweiler ( Rapporteur),
    the first State and performs the same work there when,             G. F. Mancini and G. Hirsch, Judges; C. O. Lenz, Advocate
    as in the main action, the national of the second State            General; H. A. Riihl, Principal Administrator, for the
    obtains his income entirely or almost exclusively from             Registrar, gave a judgment on 16 February 1995, the
    the work performed in the first State and does not                 operative part of which is as follows:
    receive in the second State sufficient income to be subject
    to taxation there in a manner enabling his personal and             1 . the situation of a Danish worker, residing in Denmark
    family circumstances to be taken into account.                           and employed exclusively by an undertaking with its
                                                                             seat in Germany, who in the course of that employment
3 . Article 48 of the Treaty must be interpreted as                          relationship, regularly, for several hours each week and
    precluding a provision in the legislation of a Member                    for a period not limited to twelve months pursues his
    State on direct taxation under which the benefit of                      activity partly in Denmark, falls under Article 14
    procedures such as annual adjustment of deductions at                    (2) (b) (i) of Council Regulation 1408/71 of 14 June
    source in respect of wages tax and the assessment by the                 19-71 on the application ' of social security schemes to
    administration ofthe tax payable on remuneration from                    employed persons, to self-employed persons and to
    employment is available only to residents, thereby                       members of their families moving within the
    excluding natural persons who have no permanent                          Community.
    residence or usual abode on its territory but receive
    income there from employment.                                      2 . 'Activity' within the meaning of Article 14 (2) (b) (i) of
                                                                             Regulation (EEC) No 1408/71 covers the term
(!) OJ No C 177, 29 . 6 . 1993 .                                             'employed'.
                                                                       (!) OJ No C 332, 18 . 12 . 1993 .
                                                                       ( 2 ) OJ No L 230, 22. 8 . 1983 , p . 6 .
               JUDGMENT OF THE COURT
                       (Second Chamber)
                      of 16 February 1995
in Case C-425/93 -reference for a preliminary ruling from             References for a preliminary ruling from the Tribunale
the Schleswig-Holsteinisches Landessozialgericht): Calle              Amministrativo Regionale del Lazio — Sezione II — by
Grenzshop Andresen GmbH & Co. KG v. Allgemeine                        orders of that court of 19 October 1994 in the case of ( 1 )
                                                                      Radio Torre, (2 ) Rete A Sri, (3 ) Vallau Italiana
  Ortskrankenkasse für den Kreis Schleswig-Flensburg ( ! )
                                                                      Promomarket Sri, (4 ) Radio Italia Solo Musica Sri and
(Social Security for migrant workers — Determination of               Others, ( 5 ) GETE (Tele Nova), ( 6) ToscanaTV and Othres,
                   the legislation applicable)                        and ( 7) Nuova Antenna Tre SpA and Others v. Ministero
                          ( 95/C 74/03 )                                              delle Poste e Telecommunicazioni
                                                                      ( Cases C-328/94, C-329/94, C-337/94, C-338/94 and
                (Language of the case: German)                                        C-339/94, C-21/95 and C-22/95 )
                                                                                                  ( 95/C 74/04 )
(Provisional translation; the definitive translation will be
         published in the European Court Reports)                     Reference has been made to the Court of Justice of the
                                                                      European Communities by orders of the Tribunale
In Case C-425/93 : reference to the Court under Article 177           Amministrativo Regionale del Lazio, Sezione II ( Regional
of the EC Treaty from the Schleswig-Holsteinisches                    Administrative Court, Lazio, Second Chamber) of
Landessozialgericht (Higher Social Court, Schles­                     1 9 October 1 994, which were received at the Court Registry
wig-Holstein ) ( Germany) for a preliminary ruling in the             on 12 December and 28 December 1994 and 30 January and
proceedings pending before that court between Calle                   1 February 1995, for a preliminary ruling in the case of ( 1 )
Grenzshop Andresen GmbH & Co. KG and Allgemeine                       Radio Torre ( C-328/94 ), (2 ) Rete A Sri ( C-329/94 ), ( 3 )
Ortskrankenkasse fur den Kreis Schleswig-Flensburg,                   Vallau Italiana Promomarket Sri ( C-337/94 ), (4 ) Radio
 ---pagebreak--- 25 . 3 . 95             EN                 Official Journal of the European Communities                                   No C 74/3
Italia Solo Musica Sri and Others ( C-338/54 ), ( 5 ) GETE            received at the Court Registry on 4 January 1995 , for a
(Tele Nova ) ( C-339/94 ), ( 6 ) Toscana TV and Others                preliminary ruling in the case of Sparekassernes Datacenter
( C-21/95 ), and ( 7) Nuova Antenna Tre SpA and Others                v. Skatteministeriet on the following questions:
( C-22/95 ) v. Ministero delle Poste e Telecomunicazioni on
Questions 1 and 2 in Case C-337/94 and on Question 2 in               Question 1
the other abovementioned cases .
                                                                      Should Article 13 B ( d ) Nos 3 to 5 of the Sixth VAT
Question 1                                                            Directive (*) be interpreted as meaning that VAT exemption
                                                                      should be granted for services of a type described above in
Is Directive 89/552/EEC (*) and, in particular, Articles 1 ( b )      Paragraphs 3 and 5 ( 2 )?
and 18 thereof, to be construed as meaning that the
expression 'forms of advertisements such as direct offers to          In that connection is the   granting of exemption from VAT
the public' in Article 1 8 is used under Community law, for           under Article 13 B (d )      Nos 3 to 5 precluded where a
the purposes of raising the ceiling of advertising                    transaction within the       meaning of that provision is
concentration to 20 % of daily transmission time:                     performed, wholly or in     part, electronically ?
(a ) purely by way of example and is capable of covering              Question 2
      other forms of advertising as well, apart from spot
      advertising, including for the purposes of this case            The wording used in Article 13 B ( d ) Nos 1 and 2 of the VAT
      'telepromotions' which, while not containing 'offers to         directive is 'by the person granting [the credit]' (ved den
      the public', could none the less be treated in the same         person, som har ydet lanene ) and 'by the person who' is
      way as such offers on account of some of their inherent         granting the credit' (ved den person, der har ydet kreditten).
      characteristics (telepromotions themselves can be               That description is not employed in Article 13 B ( d ) Nos 3
                                                                      to 5 .
      identified by the fact that, while suitable breaks clearly
      distinguish them from their editorial context,
      nevertheless there is generally a 'more time-consuming'         Should any importance be attached to that difference in the
      element of continuity for the insertion of shows and/or         interpretation of Article 13 B ( d) Nos 3 to 5 ?
      games than in the case of spot advertising); or:
                                                                      Question 3
( b ) by way of explanation or definition (in accordance with
      Article 12 of the contested legislation), as meaning that       A. Is it significant as far as the application of Article 3 B ( d)
                                                                           Nos 3 to 5 is concerned whether transactions are
      the possibility of increasing the daily concentration of
      advertising to 20 % relates only to 'offers to the public'           performed by financial institutions or by others ?
      in the strict sense and not to forms of advertising such as
      'telepromotions' as well, precisely because they lack the       B. Is it significant as far as the application of Article 13
      qualifying characteristics of an 'offer'?                            B (d) Nos 3 to 5 is concerned whether the entire
                                                                           financial service is performed by a financial institution
                                                                           which has a relationship with a customer ?
Question 2
                                                                      C. If it is unnecessary for the application of Article 13 B ( d)
Is Directive 89/552/EEC, and in particular Article 17 ( 1 ) ( b )          Nos 3 to 5 that the financial institution itself should
thereof, to be interpreted as precluding altogether any forms              perform the entire service, can the financial institution
of sponsorship in which the sponsor's name and/or logo                     purchase transactions wholly or in part from another
may be shown during the programme at times other than the                  person with the effect that the services performed by
beginning and/or the end of the programme (as provided                     that other person are covered by Article 13 B ( d ) Nos 3
for, subject to certain derogations, by Article 4 of the                   to 5 , or may particular requirements be made of that
contested decree ), or as freely permitting repeated forms of              other person ?
sponsorship even during the programme itself?
                                                                      Question 4
(!) OJ No L 298 , 17. 10 . 1989 , p . 23 .
                                                                      How is the wording used in Article 13 B ( d) Nos 3 to 4
                                                                      'transactions . . . concerning' to be interpreted ?
                                                                      This question seeks to ascertain whether the words
                                                                      'transactions . . . concerning' are to be understood as
Reference for a preliminary ruling by the 0stre Landsret by           meaning that VAT exemption should also be granted in
a decision of that court of 20 December 1994 in the case of           cases where a person either performs only a part of the
        Sparekassernes Datacenter v. Skatteministeriet                service or performs only some of the transactions within the
                           (Case C-2/95 )
                                                                      meaning of the Directive that are necessary for the supply of
                                                                      the complete financial service.
                            ( 95/C 74/05 )
                                                                      Question 5
Reference has been made to the Court of Justice of the
European Communities by a decision of the 0stre Landsret              In interpreting Article 13 B ( d) Nos 3 to 5 should
 [Eastern Regional Court] of 20 December 1994, which was              significance.be attached to the fact that the taxable person