CELEX: C1996/354/13
Language: en
Date: 1996-11-23 00:00:00
Title: JUDGMENT OF THE COURT (Sixth Chamber) of 26 September 1996 in Case C-287/94 (reference for a preliminary ruling from the Østre Landsret): A/S Richard Frederiksen & Co. v. Skatteministeriet (Raising of capital - Capital duty - interest-free loan granted by a parent company to its subsidiary - Company income tax)

23 . 11 . 96           EN                   Official Journal of the European Communities                                    No C 354/7
uniform basis of assessment ( OJ No L 145 , 1977, p. 1 ), the          Commission of the European Communities ( Agents :
Court ( Fourth Chamber ), composed of: C. N. Kakouris,                 Jean-Paul Keppenne and Ben Smulders ) — application for
President of the Chamber, P. J. G. Kapteyn and                         annulment of Commission decision SG(94 ) D/8907 of
H. Ragnemalm ( Rapporteur ), Judges; G. Cosmas,                        27 June 1994 concerning aid to the company Kimberly
Advocate-General; H. A. Rühl , Principal Administrator, for            Clark Sopalin — the Court, composed of: G. C. Rodriguez
the Registrar, has given a judgment on 26 September 1996               Iglesias , President, C. N. Kakouris, D. A. O. Edward, J. -P.
in which it ruled :                                                    Puissochet and G. Hirsch ( Rapporteur ), ( Presidents of
                                                                       Chambers ), G. F. Mancini , P. J. G. Kapteyn, C. Gulmann,
I. The hiring out of tangible property constitutes                     J. L. Murray, L. Sevón and M. Wathelet, Judges; F. G.
     exploitation ofsuch property which must be classified as          Jacobs, Advocate-General ; H. von Holstein, Deputy
     an 'economic activity ' within the meaning of Article 4           Registrar, for the Registrar, gave a judgment on
     (2) of the sixth Council Directive (77/388/EEC) of                26 September 1996 , in which it:
     17 May 1977 on the harmonization of the laws of the
     Member States relating to turnover taxes — common                 1 . dismisses the application;
     system of value added tax: uniform basis of assessment,
     if it is done for the purpose of obtaining income
     therefrom on a continuing basis.                                  2 . orders the French Republic to pay the costs.
2 . In order to determine whether the hiring out of tangible           (') OJ No C 304 , 29 . 10 . 1994 .
     property such as a motor caravan is carried on with a
     view to obtaining income on a continuing basis, within
     the meaning of the second sentence ofArticle 4 (2) of the
     sixth Directive, it is for the national court to evaluate all
     the circumstances of the particular case.
3 . Article 11 (A) (1 ) (c) of the sixth Directive is to be
     interpreted as meaning that the taxable amount for                               JUDGMENT OF THE COURT
     turnover tax on transactions treated as supplies of                                       ( Sixth Chamber)
     services under Article 6 (2) (a) of the Directive must
     include expenses which are incurred during a period in                                 of 26 September 1996
     which the goods are at the taxable person 's disposal in a        in Case C-287/94 ( reference for a preliminary ruling from
     way that he can actually use them at any time for                 the 0stre Landsret ): A/S Richard Frederiksen & Co . v.
     non-business purposes and which relate to the goods                                      Skatteministeriet ( 1 )
     themselves or which the taxable person is entitled to             (Raising of capital — Capital duty — interest-free loan
     deduct for VAT purposes. The portion of the expenses              granted by a parent company to its subsidiary — Company
     to be included must be proportionate to the ratio                                              income tax)
     between the total duration ofactual use of the goods and
                                                                                                  ( 96/C 354/ 13 )
     the duration of actual use for non-business purposes.
(') OJ No C 275 , 1 . 10 . 1994 .                                                       (Language of the case: Danish)
                                                                       (Provisional translation; the definitive translation will be
                                                                                 published in the European Court Reports)
               JUDGMENT OF THE COURT                                   In Case C-287/94 : reference to the Court under Article 177
                                                                       of the EC Treaty from the 0stre Landsret ( Eastern Regional
                    of 26 September 1996
                                                                       Court ) ( Denmark ) for a preliminary ruling in the
in Case C-241/94 : French Republic v. Commission of the                proceedings pending before that court between A/S Richard
                  European Communities ( 1 )                           Frederiksen       &   Co .     and   Skatteministeriet   on   the
(Concept ofState aid within the meaning ofArticle 92 (1) of            interpretation of Article 4 ( 2 ) ( b ) and Article 10 of Council
   the Treaty — State intervention of a social character)              Directive 69/335/EEC of 17 July 1969 concerning indirect
                           ( 96/C 354/ 12 )                            taxes on the raising of capital ( Official Journal, English
                                                                       Special Edition, 1969 ( II ), p. 412 ), the Court ( Sixth
                                                                       Chamber ), composed of: C. N. Kakouris , President of the
                (Language of the case: French)                         Chamber, G. F. Mancini and H. Ragnemalm ( Rapporteur ),
                                                                       Judges; A. La Pergola, Advocate-General ; H. A. Rühl ,
(Provisional translation; the definitive translation will be           Principal Administrator, for the Registrar, has given a
          published in the European Court Reports)                     judgment on 26 September 1996 in which it rules :
In Case C-241 /94 : French Republic ( Agents : Edwige                   1 . Article 4 (2) (b) of Council Directive 69/335/EEC of
Belliard, Catherine de Salins and Jean-Marc Belorgey ) v.                   1 7 July 1 969 concerning indirect taxes on the raising of
 ---pagebreak--- No C 354/ 8             EN                   Official Journal of the European Communities                                   23 . 11 . 96
      capital must be interpreted as applying, where a                       he provides constitutes a prerequisite for the
      company benefits from an interest-free loan, to the                    performance of the principal artistic or entertainment
      amount of interest saved.                                              service supplied.
2 . Article 10 of Directive 69/335/EEC does not preclude                2 . The fact that the person concerned has undertaken in
      the levying of income tax on a parent company which                    addition to coordinate the sound effects to be produced
      has granted an interest-free loan to one of its                        with his assistance with certain visual effects produced
      subsidiaries, on the basis of interest fixed after the                 by other persons cannot affect the answer given to the
      event.                                                                 first question.
( 1 ) OJ No C 351 , 10 . 12 . 1994 .                                    (') OJ No C 392 , 31 . 12 . 1994 .
               JUDGMENT OF THE COURT
                                                                                       JUDGMENT OF THE COURT
                          ( Sixth Chamber)
                                                                                                ( Sixth Chamber )
                      of 26 September 1996
                                                                                             of 26 September 1996
in Case C-327/94 ( reference for a preliminary ruling from
the Finanzgericht, Cologne ): Jiirgen Dudda v. Finanzamt                in Case C-43/95 ( reference for a preliminary ruling from the
                       Bergisch Gladbach (')                            Hogsta Domstolen ): Data Delecta Aktiebolag and Ronny
                                                                                         Forsberg v. MSL Dynamics (')
 ( Value added tax — Interpretation of Article 17 (2) and
Article 3 (a) of Directive 77/388/EEC and of Article 3 (b)              (Equal treatment — Discrimination on grounds of
and the first paragraph of Article 5 of Directive                       nationality — Security for the costs of judicial
 79/1072/EEC — Refund of value added tax to taxable                                                 proceedings)
    persons not established in the territory of the country)                                       ( 96/C 354/ 15 )
                            ( 96/C 354/ 14 )
                                                                                        (Language of the case: Swedish)
                (Language of the case: German)
                                                                        (Provisional translation; the definitive translation will be
 (Provisional translation; the definitive translation will be                     published in the European Court Reports)
           published in the European Court Reports)
                                                                        In Case C-43/95 : reference to the Court under Article 177 of
In Case C-327/94 : reference to the Court under Article 177             the EC Treaty from the Hogsta Domstolen [ Supreme
of the EC Treaty from the Finanzgericht [Finance Court],                Court], Stockholm, for a preliminary ruling in the
 Cologne ( Germany ) for a preliminary ruling in the                    proceedings pending before that court between Data
 proceedings pending before that court between Jiirgen                  Delecta Aktiebolag and Ronny Forsberg, and MSL
 Dudda and Finanzamt Bergisch Gladbach on the                           Dynamics Ltd — on the interpretation of Article 6 of the EC
 interpretation of Article 9 ( 2 ) of the sixth Council Directive       Treaty — the Court ( Sixth Chamber ) composed of: C. N.
 77/388/EEC of 17 May 1977 on the harmonization of the                  Kakouris , President of the Chamber, G. F. Mancini and
 laws of the Member States relating to turnover taxes —                 P. J. G. Kapteyn ( Rapporteur ), Judges; A. La Pergola ,
 common system of value added tax : uniform basis of                    Advocate-General, R. Grass, Registrar, gave a judgment on
 assessment ( OJ No L 145 , 1977, p. 1 ), the Court ( Sixth             26 September 1996 , the operative part of which is as
 Chamber ), composed of: C. N. Kakouris ( Rapporteur ),                 follows :
 President of the Chamber, P. J. G. Kapteyn and J. L. Murray,
Judges ; N. Fennelly, Advocate-General ; H. von Holstein,                The first paragraph of Article 6 of the EC Treaty must be
 Deputy Registrar, has given a judgment on 26 September                  interpreted as precluding a Member State from requiring
  1996 in which it rules :
                                                                        security to be lodged for the costs ofjudicial proceedings by
                                                                        a legal person established in another Member State which
  1 . The first indent of Article 9 (2) (c) of the sixth Council         has brought, before one of its courts, an action against one
       Directive 77/388/EEC of 17 May 1977 on the                        of its nationals or a company established in the Member
       harmonization of the laws of the Member States relating           State in question , where no such requirement can be
       to turnover taxes — common system of value added tax:             imposed on legal persons from that State, in a situation in
       uniform basis of assessment must be interpreted as                which the action is connected with the exercise of
       covering the activity of a person who provides                    fundamental freedoms guaranteed by Community law.
       sound-engineering for artistic or entertainment events
       by choosing and operating the equipment used,                     (') OJ No C 119 , 13 . 5 . 1995 .
       adjusting it to the particular acoustic conditions and the
       desired sound effects, and who supplies the requisite
       equipment and operating staff, where the service which