CELEX: C1999/333/30
Language: en
Date: 1999-11-20 00:00:00
Title: Case C-311/99: Reference for a preliminary ruling by the Tribunale di Roma by order of 1 July 1999 in the criminal proceedings against Armando Caterino

C 333/14               EN                    Official Journal of the European Communities                                   20.11.1999
1.     where elements of the Directive were taken over when it          3.     Is it permitted or required to ascertain the country risk
was transposed into the national commercial accounting law              on the basis of one’s own connections, experience and
applicable to all traders (in this case Paragraph 238 et seq. of        information, or of knowledge in the sector or by using rating
the HGB), even though for them the ‘true and fair view’                 tables, or by a combination of those methods, or by a different
requirement set out in the preamble to and Article 2 of the             estimation?
Directive was not adopted in the wording of the legislation
(unlike in the case of capital companies, Paragraphs 264(2)             4.     May a risk be taken into account even if
and 289(1) of the HGB);
                                                                        (a) it already existed when the basic transaction was entered
2.     where national tax law (in this case the first sentence               into, and
of Paragraph 5(1) of the German Einkommensteuergesetz
                                                                        (b) it is many times greater than the profit or earnings to be
(Income Tax Law, ‘the EStG’) in conjunction with Para-
                                                                             made from it (in this case, a guarantee fee for a period of
graph 8(1) of the German Körperschaftsteuergesetz (Corpor-
                                                                             less than one year)?
ation Tax Law, ‘the KStG’) and Paragraph 7 of the German
Gewerbesteuergesetz (Trace Tax Law, ‘the GewStG’) assumes
that the commercial law principles of proper accounting are             5.     Are the country risk and the creditworthiness risk to be
applicable for ascertaining the profits of traders who draw up          taken into account, if necessary, alongside each other for the
balance sheets, and                                                     same loan by means of a value adjustment or a provision,
                                                                        whether as a single amount or as separate amounts?
(a) where these are regulated in the provisions for all traders
     (Paragraph 238 et seq. of the HGB) harmonised (by the              6.     Is a combination of provisions for risk also permissible
     Directive) or                                                      if one risk is ascertained individually and the other risk
                                                                        globally?
(b) where the specific accounting provisions for capital com-
     panies (Paragraph 264 et seq. of the HGB) apply;                   7.     Is double provision for a risk properly avoided by the
                                                                        fact that, after one risk has been taken into account, only the
                                                                        loan amount arithmetically reduced thereby is then used as the
3.     where national tax law refers in another connection to           basis of assessment of the remaining other risk?
concepts or criteria from commercial accounting law?
                                                                        III. Value clarification
II. Balance-sheet treatment of loan risks
                                                                        1.     Must not only increases but also decreases in risks be
                                                                        taken into account as value clarification, going beyond the
1.     Where foreign loans have been granted, is a country risk         wording of Article 31(1)(c)(bb) of the Directive (first clause of
(foreign currency risk or transfer risk) to be included in the          Paragraph 253(1)(4) of the HGB)?
balance sheet as a value adjustment — as on the ‘Assets’ side
by means of writing down of foreign debts (Articles 19 and              2.     Does a loan repayment between the balance-sheet date
39(1)(b) and (c) of the Directive, Paragraph 253(3) and (4) of          and the date on which the balance sheet is drawn up constitute
the HGB) — also on the ‘Liabilities’ side by means of                   a (retrospectively) value-clarifying fact and not merely a
provisions (Article 20(1) of the Directive, first sentence of           value-influencing fact which has effect only in the year of
Paragraph 249(1) of the HGB) for off-balance-sheet contingent           repayment?
liabilities under guarantees for foreign debts due to third
parties (Article 14 of the Directive, Paragraph 251 of the HGB;         3.     For value clarifications of risks which are of relatively
‘risk subparticipation agreement’)?                                     slight importance for the undertaking concerned, instead of
                                                                        the period up to the signature of the balance sheet or the
2.     Is it compatible with the requirement of separate valu-          establishment of the annual accounts, may the date on which
ation of balance sheet items (Article 31(1)(e) of the Directive,        valuation of the relevant balance-sheet item is completed be
Paragraph 252(1)(3) of the HGB), instead of taking risks into           taken?
account purely by individual value adjustments or provisions,
alternatively to take them into account by means of globalised
value adjustments or provisions, even if a loan default is not
preponderantly probable in the individual case:
                                                                        Reference for a preliminary ruling by the Tribunale di
                                                                        Roma by order of 1 July 1999 in the criminal proceedings
(a) May a creditworthiness risk which is not acute but merely                              against Armando Caterino
     latent be covered by a global value adjustment, not only in
     the form of writing down a debt but also by means of a
     provision for a contingent (guarantee) liability?                                           (Case C-311/99)
(b) May a not preponderantly probable country risk be taken                                      (1999/C 333/30)
     into account by means of a country-related globalised
     value adjustment (globalised individual value adjustment),         Reference has been made to the Court of Justice of the
     not only in the form of writing down a debt but also by            European Communities by order of 1 July 1999 from the
     means of a provision for a contingent (guarantee) liability?       Tribunale di Roma (District Court, Rome), which was received
 ---pagebreak--- 20.11.1999              EN                   Official Journal of the European Communities                                        C 333/15
at the Court Registry on 13 August 1999, for a preliminary              2. breach of Community law regarding the principle that
ruling in the criminal proceedings against Armando Caterino                 proceedings should be inter partes and failure to state
on the following question:                                                  sufficient reasons;
‘For the purposes of Community law, is the term “transport              3. failure to adjudicate on a crucial point in the dispute;
[of] waste on a professional basis” contained in Article 12 of          4. breach of Community law regarding defamation and
Directive 91/156/EEC(1) equivalent to “transport of waste                   failure to state sufficient reasons;
produced by others”, regard also being had to the notion
of “producer” of waste under Article 1 of that directive?               5. distortion of the facts relating to the alleged ‘confusion of
Consequently, is Article 1(19) of Law No 426/1998, which                    interests’ and failure to state sufficient reasons or to define
implements that directive, in itself in accordance or at variance           the legal situation correctly;
with the above Community legislation properly construed?’
                                                                        6. distortion of the facts relating to the alleged reluctance of
                                                                            Ismeri’s representative to resign from the management
 (1) Council Directive of 18 March 1991 amending Directi-
     ve 75/442/EEC on waste, OJ L 78 of 26 March 1991, p. 32.               board of the ARTM (agency for transMediterranean net-
                                                                            works) and failure to state sufficient reasons.
Appeal brought on 24 August 1999 by Ismeri Europa Srl                   Reference for a preliminary ruling from the Bundes-
against the judgment delivered on 15 June 1999 by the                   finanzhof (Federal Finance Court) by order of that court
Third Chamber of the Court of First Instance of the                     of 15 July 1999 in the case of Finanzamt Burgdorf v
European Communities in Case T-277/97 between Ismeri                                           Hans-Georg Fischer
Europa Srl and Court of Auditors of the European
                            Communities                                                          (Case C-322/99)
                         (Case C-315/99 P)                                                       (1999/C 333/32)
                          (1999/C 333/31)                               Reference has been made to the Court of Justice of the
                                                                        European Communities by a judgment of the Bundesfinanzhof
                                                                        of 15 July 1999, which was received at the Court Registry on
An appeal against the judgment delivered on 15 June 1999 by             27 August 1999, for a preliminary ruling in the case of
the Third Chamber of the Court of First Instance of the                 Finanzamt Burgdorf v Hans-Georg Fischer on the following
European Communities in Case T-277/97 between Ismeri                    question of interpretation of Directive 77/388/EEC (1):
Europa Srl and the Court of Auditors of the European
Communities was brought before the Court of Justice of the              (1) Do subsequent (deductible) bodywork repairs and respray-
European Communities on 24 August 1999 by Ismeri Europa                     ing work carried out on a car (on the purchase of which
Srl, whose registered office is in Rome, represented by Sergio              VAT was not deductible) mean, on transfer from the
Ristuccia and Gian Luigi Tosato, of the Rome Bar.                           business,
The appellant claims that the Court should:                                 (a) that the car must be viewed as goods on which
                                                                                 VAT was partly deductible under Article 5(6) of the
— set aside the judgment delivered on 15 June 1999 by the                        Directive, or
     Court of First Instance in Case T-277/97;
                                                                            (b) that the subsequent expenditure is to be viewed as a
— uphold the forms of order sought by Ismeri at first                            component, on which VAT was deductible, of the
     instance, which are to be deemed to have been reapplied                     goods?
     for in their entirety;
                                                                        (2) If Question (1) is answered in the affirmative, what are the
— order the Court of Auditors to pay the costs incurred both                business goods disposed of which are to be taxed under
     at first instance and in these appeal proceedings.                     Article 5(6) of the Directive:
                                                                            (a) the car including the work carried out on it (bodywork
Pleas and main arguments                                                         repairs and respraying) or
                                                                            (b) only the work carried out (bodywork repairs and
Pursuant to Article 225 of the EC Treaty and Article 49 of the                   respraying)?
EC Statute of the Court of Justice, Ismeri appeals against the
above judgment on the following grounds:                                (3) If Question (2) is answered in the affirmative: Is the basis
                                                                            of assessment under Article 11A(1)(b) of the Directive the
1. flaws in the procedure before the Court of Instance (failure             purchase price of the car (or an equivalent car) together
     to rule on the application for a hearing of oral evidence              with the cost of repairs each determined as at the time of
     and an inadequate preparatory inquiry) to the detriment of             disposal, or only the price of the (tax deductible) repairs
     the applicant;                                                         carried out?