CELEX: C2000/122/18
Language: en
Date: 2000-04-29 00:00:00
Title: Case C-43/00: Reference for a preliminary ruling by the Vestre Landsret by order of 9 February 2000 in the case of Andersen og Jensen ApS v Skatteministeriet

29.4.2000               EN                    Official Journal of the European Communities                                            C 122/11
Reference for a preliminary ruling by the Hoge Raad der                  of 2 February 2000, which was received at the Court Registry
Nederlanden by judgment of 4 February 2000 in the case                   on 11 February 2000, for a preliminary ruling in the public
of Herbert Weber v Universal Ogden Services Ltd, a                       inquiry concerning Aaron Theophilus Joseph (trading as
            company incorporated under Scots law                         Woodcroft Haulage), on the following question:
                           (Case C-37/00)
                                                                         Since all serious offences are dealt with under paragraph 2 (a)
                                                                         of Schedule 3, to the 1995 Act, was the removal of the word
                          (2000/C 122/16)                                ‘repeatedly’ in relation to road transport offences (paragraph 2
                                                                         (b) of Schedule 3) necessary in order to implement Council
Reference has been made to the Court of Justice of the                   Directive 98/76/EC (1) of 1 October 1998 and, if so, is the
European Communities by a judgment of the Hoge Raad der                  correct interpretation of 98/76/EC of 1 October 1998 that
Nederlanden (Supreme Court of the Netherlands), which was                mandatory loss of repute must occur if an individual is
received at the Court Registry on 10 February 2000, for a                convicted of 2 or more road transport offences in the course
preliminary ruling in the case of Herbert Weber v Universal              of a single court appearance?
Ogden Services Ltd, a company incorporated under Scots law,
on the following questions:
                                                                         (1) amending Directive 96/2/EC on admission to the occupation of
(a) Must work carried out on the Netherlands section of the                  road haulage operator and road passenger transport operator and
     continental shelf under the North Sea by an employee as                 mutual recognition of diplomas, certificates and other evidence of
                                                                             formal qualifications intended to facilitate for these operators the
     defined in the Wet Arbeid Mijnbouw Noordzee (1) (Law on                 right to freedom of establishment in national and international
     Mining Work in the North Sea) (‘WAMN’) be regarded as                   transport operation (OJ L 277 of 14.10.1998, p. 17).
     or treated as equivalent to work carried out in the
     Netherlands for purposes of the application of Article 5(1)
     of the Brussels Convention? (2)
(b) If so, in order to answer the question whether the employee
     must be regarded as having carried out his work ‘habitually’
     in the Netherlands, must account be taken of the entire
     period of his employment or is only his most recent period
     of employment relevant?
(c) In answering Question (b) must a distinction be drawn                Reference for a preliminary ruling by the Vestre Landsret
     between the period before the WAMN entered into force               by order of 9 February 2000 in the case of Andersen og
     — when Netherlands law had not yet designated a court                                Jensen ApS v Skatteministeriet
     with territorial jurisdiction to deal with a case such as the
     present — and the period after the WAMN entered into
     force?                                                                                         (Case C-43/00)
(1) Law of 2 November 1992, Staatsblad 592.                                                        (2000/C 122/18)
(2) Convention of 27 September 1968 on Jurisdiction and the
    Enforcement of Judgements in Civil and Commercial Matters.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of 9 February 2000 by the
                                                                         Vestre Landsret (Western Regional Court), which was received
                                                                         at the Court Registry on 14 February 2000, for a preliminary
                                                                         ruling in the case of Andersen og Jensen ApS v Skatteminis-
                                                                         teriet (Finance Ministry) on the following questions:
Reference for a preliminary ruling by the Deputy Traffic
Commissioner, North Western Traffic Area (United                         Question 1
Kingdom), by order of 2 February 2000, in the public
inquiry concerning Aaron Theophilus Joseph (trading as
                       Woodcroft Haulage)                                Must the provisions of Directive 90/434/EEC (1) (the merger
                                                                         directive) be understood as meaning that it is contrary to the
                           (Case C-38/00)                                provisions of that directive, in particular Article 2(c) and (i),
                                                                         for the authorities of a Member State to refuse to treat an
                                                                         arrangement as being covered by the directive’s provisions on
                          (2000/C 122/17)                                the transfer of assets where the effect of the arrangement in
                                                                         question is that all of the transferring company’s assets and
Reference has been made to the Court of Justice of the                   liabilities are transferred to a second company (the receiving
European Communities by an order of the Deputy Traffic                   company), with the exception of a minor block of shares and
Commissioner, North Western Traffic Area (United Kingdom),               the proceeds of a loan taken out by the transferring company?
 ---pagebreak--- C 122/12                EN                      Official Journal of the European Communities                                           29.4.2000
Question 2                                                                 (1) May Article 10 of Council Directive 69/335/EEC (1) be
                                                                                relied on by a private individual in dealings with the State,
Does it have any bearing on the answer to Question 1 that it                    even if the latter has not transposed that directive into
can be assumed that the transferring company took out the                       national law?
loan in question with a view to reducing the net value of the
assets and liabilities to be transferred to the receiving company,
inasmuch as the loan proceeds are to remain in the transferring            (2) Must the operations referred to in Article 4(3) of Directive
company while the debt liability is transferred to the receiving                69/335/EEC be regarded as covered by the prohibition laid
company?                                                                        down in Article 10 of the same Community measure, in
                                                                                such a way as to preclude the collection, under the
                                                                                directive, not only of the tax on the raising of capital but
Question 3                                                                      also of any other levy, of whatever kind, in particular one
                                                                                that is a charge rather than a tax?
Does it have any bearing on the answer to Question 1 and/or
Question 2 that it can be assumed that the loan in question
was taken out with a view to making it possible for previous               (3) Must Articles 10 and 12(1)(e) of the same directive be
associates, as a step in a generation change within the                         interpreted as meaning that the fees payable for recordal in
undertaking, to finance the subscription of shares in the                       a (legally binding) commercial register public of resolutions
receiving company?                                                              increasing capital or amending statutes may not vary
                                                                                according to the amount of the increase and the amount
                                                                                of the capital, respectively?
Question 4
Must the provisions of the merger taxation directive, in                   (4) May such variations in the amount of the fee be regarded
particular Article 2(i) thereof, be understood as meaning that                  as depending, directly or indirectly, on the cost of the
it is contrary to those provisions for a condition to be imposed,               service provided?
before an arrangement can be treated as being covered by the
asset-transfer provisions of the directive, under which the
transferring company, the principal shareholders in person or
any other third party may not provide security for the benefit             (5) Does that cost include the salary of officials, agents or
of the receiving company, on the ground that it is indicated                    other public employees, expenses incurred in respect of
that the future cash requirements of the receiving company                      minor operations carried out free of charge, and a portion
are to be financed by working credit from a financial institution               of overheads (rent of premises, data-processing and com-
which wishes to obtain a lien on the shares of the receiving                    munications equipment, electricity, water and the like)
company?                                                                        attributable to registration operations?
(1) of 23 July 1990 on the common system of taxation applicable to
     mergers, divisions, transfers of assets and exchanges of shares       (6) Is it permitted, having regard to the abovementioned
     concerning companies of different Member States.                           articles of the said directive, to regard those variables
                                                                                deriving from increases of capital as a manifestation of
                                                                                standardised charges and, as such, authorised charges?
                                                                           (7) Is it permitted, having regard to the same provisions of the
                                                                                directive, for any fee to be charged in excess of the cost of
                                                                                the service? And if so, to what extent? If the excess were to
Reference for a preliminary ruling by the Supremo                               be manifest and unreasonable, could the amount of the
Tribunal Administrativo (Second Chamber) by judgment                            fees be reduced on an equitable basis?
of that court of 26 May 1999 in the case of Sonae Turismo,
               SGPS, SA, against Fazenda Pública
                           (Case C-45/00)
                                                                           (1) Council Directive 69/335/EEC of 17 July 1969 concerning
                                                                               indirect taxes on the raising of capital (OJ English Special Edition,
                          (2000/C 122/19)
                                                                               1969(II) p. 412).
Reference has been made to the Court of Justice of the
European Communities by judgment of the Supremo Tribunal
Administrativo (Supreme Administrative Court) of 26 May
1999, which was received at the Court Registry on 14 February
2000, for a preliminary ruling in the case of Sonae Turismo,
SGPS, SA, against Fazenda Pública on the following questions: