CELEX: C1999/001/12
Language: en
Date: 1999-01-04 00:00:00
Title: Reference for a preliminary ruling made by the High Court of Justice (England and Wales), Chancery Division, by order of that court of 2 October 1998 in the cases of 1. Metallgesellschaft Limited, 2. Metallgesellschaft AG and Metallgesellschaft Handel & Beteiligungen AG, 3. The Metal and Commodity Company Limited individually against Commissioners of Inland Revenue and H. M. Attorney General (Case C-397/98) (1999/C 1/12)

4.1.1999              EN                Official Journal of the European Communities                                     C 1/7
retain the right to deduct tax charged on goods and                    and, in particular, with Articles 6, 52, 58 and/or
services where, by reason of circumstances beyond his                  73(b) of the EC Treaty for the legislation of a
control, he has not made use of those goods and services               Member State to permit a group income election
for the purpose of carrying out taxable transactions.                  (allowing distributions to be paid by a subsidiary
                                                                       to its parent without accounting for advance
                                                                       corporation tax (ACT')) only where both the
                                                                       subsidiary and parent are resident in that Member
According to that principle, does a taxable person also                State?
retain the right to deduct tax if he does in fact use the
goods or services to carry out (leasing) transactions but,
following a change in the law, is no longer entitled, after
acquiring the goods or services, to opt to waive the tax           2.  If the answer to Question 1 is No', do the
exemption for the transactions carried out with them, and              above-mentioned provisions of the EC Treaty give
so cannot in fact carry out any taxable transactions?                  rise to a restitutionary right to a resident subsidiary
                                                                       of a parent company resident in another Member
                                                                       State and/or the said parent to claim a sum of money
                                                                       by way of interest on the ACT which the subsidiary
In such a case, where there is a subsequent change in                  paid on the basis that the national laws did not allow
circumstances, does the right to deduct tax also continue              it to make a group income election, or can such a
to exist if, under national law, the tax assessments were              sum only be claimed, if at all, by way of an action
allowed to be subject to a subsequent review, enabling a               for damages pursuant to the principles laid down by
quick tax assessment to be made solely on the basis of                 the Court of Justice in Joined Cases C-46/93 and
information supplied by the taxable person, but giving the             C-48/93 Brasserie du Pecheur SA v. Federal Republic
revenue authority the right to correct the tax assessment              of Germany and R v. Secretary of State of Transport
in every respect on the basis of factual and legal                     Ex Parte Factortame and Others [1996] ECR I-1029
considerations?                                                        and R v. Secretary of State for Social Security ex
                                                                       parte Eunice Sutton (2) [1997] ECR I-2163 and in
                                                                       either case is the national court obliged to grant a
(1) [1998] ECR I-17.
(2) [1996] ECR I-857.                                                  remedy even if under national law interest cannot be
                                                                       awarded (whether directly or by way of restitution or
                                                                       damages) on principal sums which are no longer
                                                                       owing to the plaintiff?
                                                                   3.  In the circumstances set out in the Order for
                                                                       Reference is it consistent with the above mentioned
Reference for a preliminary ruling made by the High
                                                                       provisions of the EC Treaty for the authorities of one
Court of Justice (England and Wales), Chancery Division,
                                                                       Member State to deny any tax credit to a company
by order of that court of 2 October 1998 in the cases of
                                                                       resident in another Member State when it grants such
1. Metallgesellschaft Limited, 2. Metallgesellschaft AG
                                                                       credits to resident companies and to companies
and Metallgesellschaft Handel & Beteiligungen AG, 3. The
                                                                       resident in certain other Member States by virtue of
Metal and Commodity Company Limited individually
                                                                       the terms of its double taxation conventions with
against Commissioners of Inland Revenue and H. M.
                                                                       those other Member States?
                       Attorney General
                       (Case C-397/98)
                        (1999/C 1/12)                              4.  If the answer to Question 3 above is No', and was
                                                                       the first Member State at all material times obliged to
                                                                       make a tax credit available to such company on the
                                                                       same terms as to resident companies or as to
Reference has been made to the Court of Justice of the                 companies resident in Member States with provision
European Communities by an order of the High Court of                  for such credits in their double taxation conventions?
Justice (England and Wales), Chancery Division, of
2 October 1998, which was received at the Court Registry
on 6 November 1998, for a preliminary ruling in the cases
of 1. Metallgesellschaft Limited, 2. Metallgesellschaft AG         5.  Is a Member State entitled to plead in answer to such
and Metallgesellschaft Handel & Beteiligungen AG, 3.                   a claim for restitution, tax credit or damages, that the
The Metal and Commodity Company Limited individually                   Plaintiffs are not entitled to recover, or that the
against Commissioners of Inland Revenue and H. M.                      Plaintiffs' claim should be reduced, on the grounds
Attorney General, on the following questions:                          that, despite the terms of the national statute which
                                                                       prevented them from doing so as a matter of national
                                                                       law they ought to have made a group income
                                                                       election, or claimed a tax credit and to have appealed
1.    In the circumstances set out in the Order for                    to the Commissioners and, if necessary, the Courts
      Reference (1), is it consistent with Community law               against the decision of the Inspector of Taxes refusing
 ---pagebreak--- C 1/8                   EN                 Official Journal of the European Communities                                      4.1.1999
       the election or claim, relying upon the primacy and                 services is to be concluded, where such services exceed
       direct effect of the provisions of Community law?                   the threshold laid down by the relevant directives.
                                                                      (1) Council Directive 93/37/EEC, (OJ L 199, 9.8.1993, p. 54).
(1) Application of the Income and Corporation Taxes Act 1988,         (2) Pubblica Amministrazione (Public authority).
    and in particular of the United Kingdom tax rules relating to
    the payments of dividends by the United Kingdom resident
    companies whose parent companies are resident in other
    Member States.
(2) Case C-66/95.
                                                                      Reference for a preliminary ruling from the
                                                                      Bundesfinanzhof (Federal Finance Court) by order of that
                                                                      court of 27 August 1998 in the case of Finanzamt Goslar
                                                                                             v. Brigitte Breitsohl
                                                                                               (Case C-400/98)
Reference for a preliminary ruling by the Tribunale                                             (1999/C 1/14)
Amministrativo Regionale per la Lombardia, Milan, by
order of that court of 11 June 1998, in the case of Ordine
degli Architetti delle Province di Milano e Lodi and Piero            Reference has been made to the Court of Justice of the
de Angelis, Architect, v. Comune di Milano, SocietaÁ                  European       Communities        by     an   order    of     the
Pirelli, Milano Centrale Servizi SpA and Ente Autonomo                Bundesfinanzhof (Federal Finance Court) of 27 August
                         Teatro alla Scala                            1998, which was received at the Court Registry on
                                                                      9 November 1998, for a preliminary ruling in the case of
                         (Case C-399/98)                              Finanzamt Goslar v. Brigitte Breitsohl on the following
                                                                      questions:
                          (1999/C 1/13)
                                                                      1. According to the case-law of the Court of Justice of
                                                                           the European Communities (judgment in Case
Reference has been made to the Court of Justice of the                     C-110/94 (1) INZO), even the very first investment
European Communities by an order of the Tribunale                          expenditure incurred for the purposes of a business
Amministrativo Regionale per la Lombardia, Milan,                          may be regarded as an economic activity within the
(Regional Administrative Court for Lombardy) of 11 June                    meaning of Article 4 of Council Directive
1998, which was received at the Court Registry on                          77/388/EEC (2). The tax authority has to take account
9 November 1998, for a preliminary ruling in the case of                   of the business person's declared intention in this
Ordine degli Architetti delle Province di Milano e Lodi                    regard. The status of taxable person accorded on that
and Piero de Angelis, Architect, v. Comune di Milano,                      basis cannot, in principle, be withdrawn retroactively
SocietaÁ Pirelli, Milano Centrale Servizi SpA and Ente                     on account of certain events having or having not
Autonomo Teatro alla Scala, on the following questions:                    occurred (principle of legal certainty). This also applies
                                                                           to the deductions relating to the investment
                                                                           transactions.
1. Whether or not the State and regional legislation                       According to those principles, is the right to deduct
     which allows a builder (who holds a building permit                   tax (Article 17 of Directive 77/388/EEC) on setting
     or approved development plan) to carry out                            up' expenditure to be accorded on the basis of the
     development works directly, in total or partial                       intention to take up economic activity leading to
     discharge of the amount owed (Article 11 of Law                       taxable transactions even where the revenue authority
     No 10/77, Articles 28 and 31 of Law No 1150 of                        is already aware, when the first tax assessment is
     17 August 1942, Articles 8 and 12 of Law No 60 of                     made, that the intended economic activity leading to
     the Lombardy Region of 5 December 1977), is                           taxable transactions was not actually taken up?
     contrary to Council Directive 93/37/EEC (1), in the
     light of the strict tendering principles imposed on the
     Member States by Community law in relation to all                If the answer to Question 1 is in the affirmative:
     public works of a value of ECU 5 million or more.
                                                                      2. In the case of a supply of buildings or parts thereof
                                                                           and of the land on which they stand, can the option
                                                                           for taxation be restricted to the buildings and parts
2. Whether, notwithstanding the principles concerning
                                                                           thereof?
     tendering referred to above, agreements between the
     administration and a private person (generally allowed
     by Article 11 of Law No 241 of 7 August 1990) may                (1) [1996] ECR I-857.
     be regarded as compatible with Community law in                  (2) OJ L 145, 13.6.1977, p. 1.
     areas in which the procedure is that the P.A. (2)
     chooses a party with whom a contract for such