CELEX: C1995/119/12
Language: en
Date: 1995-05-13 00:00:00
Title: Reference for a preliminary ruling from the Finanzgericht Köln by order of that court of 8 February 1995 in the case of Brühler Kreditbank eG v. Finanzamt Brühl (Case C-56/95)

No C 119/6               EN                Official Journal of the European Communities                                       13 . 5 . 95
Pleas in law and main arguments adduced in support:                   — on the one hand, only profits made at the balance sheet
                                                                            date are to be included, and
1 . The Court of First Instance misinterpreted the
      expression 'exceptional circumstances' in Article 25 ( 1 )      — on the other hand, account must be taken of income for
      of Regulation (EEC) No 1035/72. It was held                           the financial year to which the annual accounts relate,
      (paragraph 54 ) that that expression applies to                       irrespective of the date of receipt of such income,
      circumstances in which the Commission has discretion
      not to impose a countervailing charge, even though all
      the preconditions for the imposition thereof are met.           where a claim to a distribution on the basis of participating
      The appellant maintains that those are circumstances in         certificates ( GenuEscheine) conditional on sufficient
      which the Commission is obliged not to impose a                 distributable profit is capitalized in phase with the inclusion
      countervailing charge .                                         of profits by the distributing undertaking, even where the
                                                                      distribution does not become due until one bank working
                                                                      day following the general meeting of the distributing
2. The judgment appealed against was wrong to hold                    undertaking at which a resolution is passed appropriating
      (paragraph 62 ) that Article 3 ( 3 ) of Regulation ( EEC )      the profits for the preceding financial year ?
      No 2707/72 cannot be applied by analogy to a measure
      imposing a countervailing charge . According to the
      appellant, the effect sought to be achieved by a                (!) OJ No L 222, 14 . 8 . 1978 , p . 11 .
      protective measure adopted under Regulation ( EEC )
      No 2707/72 is absolutely equivalent to the effect sought
      by the countervailing charge .
3 . Manifestly erroneous and lacking in justification is the
      assessment by the Court of First Instance (paragraph 63 )
      that it is permissible concurrently to require the
      imposition of surveillance measures ( in the form for           References for a preliminary ruling by the Pretura
      example of an import certificate and security) and a            Circondariale di Roma — Sezione distaccata di Tivoli — by
      countervailing charge.                                          orders of that court of 15 and 22 February 1995 in criminal
                                                                      proceedings pending before it against Sandro Gallotti and
                                                                                                 Roberto Censi
4. Contrary to the holding in the judgment appealed
                                                                                        ( Cases C-58/95 and C - 75/95 )
      against (paragraph 66 ), the 1990 framework agreement
      between the Community and Chile precludes the                                              (95/C 119/13 ).
      adoption of any unilateral measure including the
      imposition of a countervailing charge.
                                                                      References have been made to the Court of Justice of
                                                                      the European Communities by orders of the Pretura
5 . The appellant maintains that the Court of First Instance          Circondariale di Roma — Sezione Distaccata di Tivoli
      ignored its entirely particular situation which is              (Rome District Magistrates' Court — Tivoli Division ) of 15
      attributable to the fact that at the material time certain
                                                                      and 22 February 1995 , which were received at the Court
      restrictions still applied to the movement of capital in        Registry on 6 and 14 March 1995 respectively, for a
      Greece under Directive 88/361/EEC of 24 June 1988 .             preliminary ruling in criminal proceedings against Sandro
                                                                      Gallotti and Roberto Censi on the following questions:
                                                                      1 . What is the legal effect of the Italian Republic's failure to
                                                                             bring into force the necessary measures to implement
Reference for a preliminary ruling from the Finanzgericht                    Council Directive 91/156/EEC ( ] ) within the prescribed
KoIn by order of that court of 8 February 1995 in the case of               time limit ?
          Bruhler Kreditbank eG v. Finanzamt Briihl
                          (Case C-56/95 )                             2. In particular, may the existence of criminal penalties,
                           ( 95/C 119/12 )                                  and in particular those provided for in Articles 10 and
                                                                             25 ( Case C-75/95 ) and Article 25 etseq. ( Case C-58/95 )
                                                                             of Presidential Decree No 915/82 for failure to observe
Reference has been made to the Court of Justice of the
European Communities by an order of the Finanzgericht                       the Italian rules, be considered to conflict with
Kôln ( Finance Court, Cologne ) of 8 February 1995, which                    Community legislation where it seeks to ensure uniform
was received at the Court Registry on 3 March 1995 , for a                  treatment, from the point of view of penalties as well, for
preliminary ruling in the case of Bruhler Kreditbank eG v.                   operators in the Single Market.
Finanzamt (Tax Office) Briihl on the following question:
                                                                      i 1 ) Council    Directive   91/156/EEC       amending   Directive
Is it in accordance with the provisions of Article 31 ( 1 ) (c), in         75/442/EEC, OJ No L 78 , 26 . 3 . 1991 , p. 32 .
particular indent ( aa ), and Article 31 ( 1 ) (d ) of the Fourth
Directive ( 78/660/EEC ) of 25 July 1978 ( 1 ), according to
which: