CELEX: C2003/304/26
Language: en
Date: 2003-12-13 00:00:00
Title: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 17 October 2003 in the case of Götz Leffler against Berlin Chemie AG, a company incorporated under German law (Case C-443)

13.12.2003              EN                           Official Journal of the European Union                                             C 304/17
within Directive 78/686/EEC are at a disadvantage in Austria                       the Kingdom of the Netherlands has failed to fulfil its
because they must use the professional title ‘dentist’ there,                      obligations under Article 18(1) of Directive 79/409/EEC,
while they are in direct competition with ‘specialists in dental,                  or has failed to fulfil its obligations under Article 23(1) of
oral and maxillo-facial surgery’. Furthermore, nationals of                        Directive 92/43/EEC to comply with the directive;
other Member States staying in Austria must be able to rely on
an unambiguous title. Otherwise uncertainty is created which                 —     declare that Article 13(3) of the Natuurbeschermingswet
could harm all patients from the Community. Since a ‘specialist                    (law on the protection of nature) is contrary to Article 6(4)
in dental, oral and maxillo-facial surgery’ is regarded under the                  of Directive 92/43/EEC;
contested Law as a ‘specialist’ and a ‘dentist’ is regarded as a
‘doctor’, it is clear that a specialist falling within Article 19b of
Directive 78/686/EEC does not practice under the same                        —     order the Kingdom of the Netherlands to pay the costs.
conditions as a ‘dentist’.
(1) OJ L 233, 24.8.1978, p. 1.
(2) OJ L 233, 24.8.1978, p. 10.
                                                                             Pleas in law and main arguments
                                                                             Although the Commission can in principle accept the measures
                                                                             which the Netherlands has proposed in order to remedy the
                                                                             failure found by the Commission in its formal notice of default,
                                                                             the Commission must find that at the present time the
                                                                             Netherlands is still in default since the proposed measures have
                                                                             not yet been adopted or brought into force.
Action brought on 15 October 2003 by the Commission
of the European Communities against the Kingdom of the
                                                                             (1) OJ L 103 of 25 April 1979, p. 1.
                             Netherlands                                     (2) OJ L 206 of 22 July 1992, p. 7.
                           (Case C-441/03)
                           (2003/C 304/25)
                                                                             Reference for a preliminary ruling by the Hoge Raad der
An action against the Kingdom of the Netherlands was brought
                                                                             Nederlanden by judgment of that Court of 17 October
before the Court of Justice of the European Communities on
                                                                             2003 in the case of Götz Leffler against Berlin Chemie
15 October 2003 by the Commission of the European
                                                                                   AG, a company incorporated under German law
Communities, represented by M. van Beek, as agent.
                                                                                                         (Case C-443)
The applicant claims that the Court should:
—    declare that by failing to bring into force the laws,                                             (2003/C 304/26)
     regulations and administrative provisions in order to:
     —      fulfil the obligations of the Kingdom of the Nether-
            lands under Article 4(1) and (2) of the Council                  Reference has been made to the Court of Justice of the
            Directive of 2 April 1979 on the conservation of                 European Communities by judgment of the Hoge Raad der
            wild birds (79/409/EEC) (1), or in any event by failing          Nederlanden (Supreme Court of the Netherlands) of 17 Octo-
            to inform the Commission of those provisions, and                ber 2003, received at the Court Registry on 20 October 2003,
                                                                             for a preliminary ruling in the case of Götz Leffler against
                                                                             Berlin Chemie AG, a company incorporated under German
     —      fulfil the obligations of the Kingdom of the Nether-
                                                                             law on the following questions:
            lands under Article 6(1), in conjunction with
            Article 2(1) and Article 1(a), (e) and (i), and
            Articles 6(2), (3) and (4), 7, 11, 14(1) and (2), and            1.    Must Article 8(1) of the Regulation (1) be construed as
            15 of Directive 92/43/EEC of 21 May 1992 on the                        meaning that, in the event of refusal by an addressee to
            conservation of natural habitats and of wild fauna                     accept a document on the ground of failure to comply
            and flora, (2) or in any event by failing to inform the                with the language requirement laid down in Article 8(1),
            Commission thereof,                                                    it is possible for the sender to rectify that failure?
 ---pagebreak--- C 304/18                EN                         Official Journal of the European Union                                         13.12.2003
2.    If the answer to Question 1 is in the negative: must                      —     the Member State of the parent company:
      refusal to accept the document be deemed to have the
      effect in law of rendering the service inoperative in its
      entirety?                                                                       —     subjects a company resident within its territory
                                                                                            to corporation tax on its total profits, including
                                                                                            the profits of branches in other Member States,
3.    If the answer to Question 1 is in the affirmative:                                    with arrangements for the availability of double
                                                                                            taxation relief for those taxes incurred in
      (a)   Within what period of time and in what manner                                   another Member State and under which branch
            must the translation be brought to the attention of                             losses are taken account of in those taxable
            the addressee? Must notification of the translation                             profits;
            satisfy the conditions which the Regulation imposes
            on the service of documents or can the manner of
            dispatch be freely determined?                                            —     does not subject the undistributed profits of
                                                                                            subsidiaries resident in other Member States to
                                                                                            corporation tax;
      (b) Does national procedural law apply in respect of the
            possibility of rectifying the failure?
                                                                                      —     subjects the parent company to corporation
                                                                                            tax on any distributions to it by way of dividend
(1) Council Regulation (EC) No 1348/2000 of 29 May 2000 on the                              by the subsidiaries resident in other Member
    service in the Member States of judicial and extrajudicial docu-                        States while not subjecting the parent company
    ments in civil or commercial matters (OJ 2000 L 160, p. 37).                            to corporation tax on distributions by way of
                                                                                            dividend by subsidiary companies resident in
                                                                                            the State of the parent;
                                                                                      —     grants double taxation relief to the parent
                                                                                            company by way of a credit in respect of
                                                                                            withholding tax on dividends and foreign taxes
                                                                                            paid on the profits in respect of which divi-
                                                                                            dends are paid by subsidiary companies resi-
Reference for a preliminary ruling by the High Court of                                     dent in other Member States;
Justice (England & Wales), Chancery Division, by order
of that court dated 16 July 2003, in the case of Marks &
Spencer plc against David Halsey (HM Inspector of Taxes)                        is there a restriction under Article 43 EC, in conjunction
                                                                                with Article 48 EC? If so, is it justified under Community
                                                                                law?
                         (Case C-446/03)
                                                                           2.   (a)   What difference, if any, does it make to the answer
                         (2003/C 304/27)                                              to Question 1 that, depending on the law of the
                                                                                      Member State of the subsidiary, it is or may be
                                                                                      possible in certain circumstances to obtain relief for
                                                                                      some or all of the losses incurred by the subsidiary
Reference has been made to the Court of Justice of the                                against taxable profits in the State of the subsidiary?
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, dated 16 July                     (b) If it does make a difference, what significance, if any,
2003, which was received at the Court Registry on 22 October                          is to be attached to the fact that:
2003, for a preliminary ruling in the case of Marks & Spencer
plc and David Halsey (HM Inspector of Taxes) on the following
questions:                                                                            —     a subsidiary resident in another Member State
                                                                                            has now ceased trading and, although there is
1.    In circumstances where:                                                               provision for loss relief subject to certain
                                                                                            conditions in that State, there is no evidence
                                                                                            that in the circumstances such relief was
      —     provisions of a Member State, such as the UK                                    obtained;
            provisions on group relief, prevent a parent com-
            pany which is resident for tax purposes in that State
            from reducing its taxable profits in that State by                        —     a subsidiary resident in another Member State
            setting off losses incurred in other Member States                              has been sold to a third party and, although
            by subsidiary companies which are resident for tax                              there is provision under the law of that State
            purposes in those States, where such set off would                              for the losses to be used under certain con-
            be possible if the losses were incurred by subsidiary                           ditions by a third party purchaser, it is uncertain
            companies resident in the State of the parent                                   whether they were so used in the circumstances
            company;                                                                        of the case;