CELEX: C1996/336/05
Language: en
Date: 1996-11-09 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 27 June 1996 in Case C-234/94 (reference for a preliminary ruling from the Bundesgerichtshof): Waltraud Tomberger v. Gebrüder von der Wettern GmbH (Directive 78/660/EEC - Annual accounts - Balance sheet - Date at which profit is made)

9 . 11 . 96            EN                 Official Journal of the European Communities                                    No C 336/3
     that of taxpayers who are resident or treated as such to        — the financial years of the two companies coincide,
     justify that difference in treatment.
                                                                     — the subsidiary 's annual accounts for the financial year in
3 . Article 52 of the Treaty precludes a Member State from                 question were adopted by the general meeting before
     taking account, by means ofa higher rate of income tax,               completion of the audit of the parent company 's annual
     of the fact that, by virtue of the relevant provisions of             accounts for that year,
     Council Regulation (EEC) No 1408/71 of 14 June 1971
     on the application of social security schemes to                — the subsidiary 's annual accounts for the financial year in
     employed persons and their families moving within the                 question, as adopted by its general meeting, show that
     Community, concerning the determination of the                        on the subsidiary 's balance-sheet date — namely the last
     applicable legislation, the taxpayer is not obliged to pay            day of that financial year — the subsidiary appropriated
     contributions to its national social insurance scheme.                profits to the parent company, and
     The fact that, also by virtue of Regulation (EEC)
     No 1408/71 , the taxpayer is insured under the social           — the national court is satisfied that the subsidiary 's annual
     security scheme of the State in which he resides is                   accounts for the financial year in question give a true and
     irrelevant in that regard.                                            fair view of its assets and liabilities, financial position
                                                                           and profit or loss,
(>) OJ No C 132 , 14 . 5 . 1994 .
                                                                     it is not contrary to the rule laid down in Article 31 (1 ) (c)
                                                                     (aa) of the fourth Council Directive 78/660/EEC of 25 July
                                                                     1 978 based on Article 54 (3) (g) of the Treaty on the annual
                                                                     accounts of certain types of companies, as amended by the
                                                                     seventh Council Directive 83/349/EEC of 13 June 1983
               JUDGMENT OF THE COURT                                 based on Article 54 (3) (g) of the Treaty on consolidated
                        ( Fifth Chamber)                             accounts, for the national court to consider that the profits
                        of 27 June 1996                              in question must be entered in the parent company 's balance
                                                                     sheet for the financial year in respect of which they were
in Case C-234/94 (reference for a preliminary ruling from            appropriated by the subsidiary.
the Bundesgerichtshof): Waltraud Tomberger v. Gebriider
                  von der Wettern GmbH (')
                                                                     (') OJ No C 288 , 15 . 10 . 1994 .
(Directive 78/660/EEC — Annual accounts — Balance                    ( 2 ) OJ No L 222 , 1978 , p . 11 .
            sheet — Date at which profit is made)                    ( 3 ) OJ No L 193 , 1983 , p . 1 .
                          ( 96/C 336/05 )
                (Language of the case: German)
(Provisional translation; the definitive translation will be                         JUDGMENT OF THE COURT
          published in the European Court Reports)
                                                                                              ( Fifth Chamber )
In Case C-234/94 : reference to the Court under Article 177                                   of 27 June 1996
of the EC Treaty from the Bundesgerichtshof ( Federal Court          in Case C-240/95 ( reference for a preliminary ruling from
of Justice ) for a preliminary ruling in the proceedings             the Cour d'Appel , Metz ( France )): Criminal proceedings
pending before that court between Waltraud Tomberger v.                                   against Remy Schmit ( 1 )
Gebriider von der Wettern GmbH — on the interpretation
of Articles 31 ( 1 ) and 59 of the fourth Council Directive          (Free movements of goods — Motor vehicles — National
78/660/EEC of 25 July 1978 based on Article 54 ( 3 ) ( g) of         system of model-year dates — Discrimination against
the Treaty on the annual accounts of certain types of                                         parallel imports)
companies ( 2 ), as amended by the seventh Council Directive                                    ( 96/C 336/06 )
83/349/EEC of 13 June 1983 based on Article 54 ( 3 ) ( g ) of
the Treaty on consolidated accounts ( 3 ), the Court ( Fifth                          (Language of the case: French)
Chamber ), composed of: D. A. O. Edward ( Rapporteur ),
President of the Chamber, J. -P. Puissochet, J. C. Moitinho
                                                                     (Provisional translation; the definitive translation will be
de Almeida, C. Gulmann and M. Wathelet, Judges; G.
                                                                                published in the European Court Reports)
Tesauro, Advocate-General ; H. von Holstein, Deputy
Registrar, has given a judgment on 27 June 1996 in which it
rules :                                                              In Case C-240/95 : reference to the Court under Article 177
                                                                     of the EC Treaty by the Cour d'Appel ( Cour of Appeal ),
Where:                                                               Metz ( France ), for a preliminary ruling in the criminal
                                                                     proceedings before that court against Remy Schmit on
— one company (the parent company) is the sole                       Article 30 of the EC Treaty — the Court ( Fifth Chamber ),
    shareholder in another company (the subsidiary), and             composed of D. A. O. Edward, President of the Chamber,
    controls it,                                                    J. -P. Puissochet, C. Gulmann, P. Jann and M. Wathelet
                                                                     ( Rapporteur ), Judges, Advocate-General : M. B. Elmer,
— under national law, the parent company and the                     Registrar : L. Hewlett, Administrator, gave a judgment on
    subsidiary form a group ,                                        27 June 1996 , the operative part of which is as follows :