CELEX: C1997/199/14
Language: en
Date: 1997-06-28 00:00:00
Title: JUDGMENT OF THE COURT of 15 May 1997 in Case C-250/95 (reference for a preliminary ruling from the Conseil d'Etat du Grand-Duché de Luxembourg): Futura Participations SA and Singer v. Administration des Contributions (Article 52 of the EEC Treaty - Freedom of establishment for companies - Taxation of a branch's income - Apportionment of income)

No C 199/8           1 EN 1                 Official Journal of the European Communities                                     28 . 6 . 97
               JUDGMENT OF THE COURT                                                 JUDGMENT OF THE COURT
                         ( Fifth Chamber)                                                       of 15 May 1997
                          of 7 May 1997                                in Case C-250/95 ( reference for a preliminary ruling from
                                                                       the Conseil d'Etat du Grand-Duché de Luxembourg ):
in Case C-223/95 ( reference for a preliminary ruling                  Futura Participations SA and Singer v. Administration des
from the Finanzgericht Hamburg ): A. Moksel AG v.                                               Contributions (M
               Hauptzollamt Hamburg-Jonas (')
                                                                       (Article 52 of the EEC Treaty — Freedom of
(Agriculture — Export refunds — Cattle imported from                   establishment for companies — Taxation of a branch 's
the former German Democratic Republic into the Federal                             income — Apportionment of income)
Republic of Germany under the transit procedure —
Impact of German reunification on the origin and status                                            ( 97/C 199/14 )
                  of goods in free circulation)
                           ( 97/C 199/ 13 )
                                                                                       (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-250/95 : reference to the Court under Article 177
                                                                       of the EC Treaty from the Conseil d'Etat du Grand-Duche
                                                                       de Luxembourg for a preliminary ruling in the
In Case C-223/95 : reference to the Court under Article 177            proceedings pending before that court between ( 1 ) Futura
of the EC Treaty from the Finanzgericht ( Finance Court),              Participations SA and ( 2 ) Singer and Administration des
Hamburg, for a preliminary ruling in the proceedings                   Contributions — on the interpretation of Article 52 of the
pending before that court between A. Moksel AG and                     EEC Treaty — the Court, composed of: G. C. Rodriguez
Hauptzollamt Hamburg-Jonas — on the interpretation of                  Iglesias, President, J. C. Moitinho de Almeida, J. L.
Article 8 ( 1 ) of Commission Regulation ( EEC ) No 3665/              Murray and L. Sevon, Presidents of the Chamber, P. J. G.
87 of 27 November 1987 laying down common detailed                     Kapteyn, C. Gulmann, D. A. O. Edward ( Rapporteur ), J.­
rules for the application of the system of export refunds              P. Puissochet, H. Ragnemalm, M. Wathelet and R.
on agricultural products ( OJ No L 351 , 14 . 12 . 1987, p. 1 )        Schintgen, Judges; C. O. Lenz, Advocate-General; H. von
in conjunction with Article 9 ( 2 ) of the EC Treaty —                 Holstein, Deputy Registrar, has given a judgment on
the Court ( Fifth Chamber ), composed of: J. C. Moitinho                15 May 1997, in which it has ruled :
de Almeida , President of the Chamber, L. Sevon
 ( Rapporteur), C. Gulmann, J. -P. Puissochet and M.
Wathelet, Judges; P. Leger, Advocate-General; H. A. Riihl ,
                                                                       Article 52 of the EC Treaty does not preclude a Member
Principal Administrator, for the Registrar, has given a                State from making the carrying forward of previous losses,
judgment on 7 May 1997, in which it has ruled :                        requested by a taxpayer which has a branch in its territory
                                                                        but is not resident there, subject to the condition that the
                                                                        losses must be economically related to the income earned
Article 8 (1 ) of Commission Regulation (EEC) No 3665/                  by the taxpayer in that State, provided that resident
 87 of 27 November 1987 laying down common detailed                     taxpayers do not receive more favourable treatment. On
 rules for the application of the system of export refunds              the other hand, that Article does preclude the carrying
 on agricultural products, in conjunction with Article 9 (2)           forward of losses from being made subject to the
 of the EC Treaty, are to be interpreted as meaning that                condition that, in the year in which the losses were
products obtained from the slaughter of cattle are neither              incurred, the taxpayer must have kept and held in that
 of Community origin nor in free circulation within the                 State accounts relating to his activities carried on there
 territory of the Community and do not therefore qualify                which comply with the relevant national rules. The
 for export refunds if, before 3 October 1990, the date of              Member State concerned may, however, require the non­
 German reunification, they were exported from the former               resident taxpayer to demonstrate clearly and precisely that
 GDR, following completion of customs export formalities                the amount of the losses which he claims to have incurred
 in that country and the grant of export refunds, and                   corresponds, under its domestic rules governing the
 imported into the Federal Republic of Germany under the                calculation of income and losses which were applicable in
 transit and warehousing procedure with a view to being                 the financial year concerned, to the amount of the losses
 re-exported to a third country.                                        actually incurred in that State by the taxpayer.
 O OJ No C 229 , 2 . 9 . 1995 .                                         (') OJ No C 248 , 23 . 9 . 1995 .