CELEX: C2004/059/28
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-9/04: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 23 December 2003 in the case of in the criminal case against Geharo B.V.

6.3.2004               EN                       Official Journal of the European Union                                               C 59/17
Article 15                                                              Does a foreign taxpayer resident in a Member State, such as
                                                                        Germany, who is not entitled to the benefits afforded by the
Article 15 of the Directive, which requires the introduction of         Netherlands-Germany Tax Convention because he does not
a general prohibition on indiscriminate capture and killing has         satisfy the condition, laid down in that regard, that he receive
been implemented by regulation 41 of the C(NH)R 1994,                   at least 90% of his income in the Netherlands, have the right,
regulation 36(2) of the C(NH)R(NI)1995 and section 17V(2)               by virtue of EC law, to receive from the Netherlands the tax-
of the NPO 1991. These provisions make it an offence to use             free allowance and tax credit for income tax in the calculation
any of the means of capture and killing listed in Annex VI(a)           of his income from savings and investments if a foreign
and Annex VI(b) of the Directive. The Commission considers              taxpayer who in resident in another Member State, in this case
that this transposition method fails to incorporate a general           Belgium, has the right to such benefits in the calculation of his
prohibition as is required by Article 15.                               income from savings and investments by virtue of the
                                                                        Netherlands-Belgium Tax Convention (and the decision of the
                                                                        State Secretary for Finance of 21 February 2002, No CPP
                                                                        2001/2745, BNB 2002/164) despite the fact that he does not
Article 16                                                              receive at least 90 % of his income in the Netherlands?
Article 16(1) of the Directive permits derogations from the
prohibitions under Articles 12, 13, 14 and 15(a) and (b) of the
Directive in certain circumstances. Such derogations are subject
to two pre-conditions in the opening paragraph of
Article 16(1), namely that there is no satisfactory alternative
and that the derogation is not detrimental to the maintenance
of the populations of the species concerned at a favourable
conservation status in their natural range. The Commission
                                                                        Reference for a preliminary ruling by the Hoge Raad der
considers that the national measures providing for these
                                                                        Nederlanden by judgment of that Court of 23 December
derogations do not adequately transpose these pre-conditions.
                                                                               2003 in the case of in the criminal case against
                                                                                                      Geharo B.V.
Application of the Directive beyond territorial waters
                                                                                                     (Case C-9/04)
The Commission considers that the Directive applies beyond
the territorial waters. Specifically, the United Kingdom has
failed to transpose the obligations to designate special areas of                                   (2004/C 59/28)
conservation under Article 4 of the Directive and to provide
species protection under Article 12 of the Directive inasmuch
as the transposing legislation does not apply beyond the
United Kingdom’s territorial waters.                                    Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of the Hoge Raad
(1) of 21 May 1992 (OJ 1992 L 206, p. 7).                               der Nederlanden (Supreme Court of the Netherlands) of
                                                                        23 December 2003, received at the Court Registry on 12 Janu-
                                                                        ary 2004, for a preliminary ruling in the case of in the criminal
                                                                        case against Geharo B.V. on the following question:
                                                                        Does the second sentence of Article 1 of Directive 91/338/
Reference for a preliminary ruling by the Gerechtshof                   EEC (1) (cadmium directive) preclude the application of the
Herzogenbusch by judgment of that Court of 8 January                    rules in that directive regarding the cadmium content of
2004 in the case of E. Bujura against Inspecteur van de                 (finished) products and components, as set out in the Annex
  Belastingdienst Limburg / Kantoor Buitenland, Heerlen                 thereto, to toys within the meaning of Directive 88/378/
                                                                        EEC (2) (toy safety directive)?
                          (Case C-8/04)
                                                                        (1) Council Directive 91/338/EEC of 18 June 1991 amending for the
                         (2004/C 59/27)                                     10th time Directive 76/769/EEC on the approximation of the
                                                                            laws, regulations and administrative provisions of the Member
                                                                            States relating to restrictions on the marketing and use of certain
                                                                            dangerous substances and preparations (OJ L 186 of 12.07.1991,
Reference has been made to the Court of Justice of the                      p. 59 — Corrigendum in OJ L 253, 10.9.1991, p. 26).
European Communities by judgment of the Gerechtshof                     (2) Council Directive 88/378/EEC of 3 May 1988 on the approxi-
Herzogenbusch (s-Hertogenbosch Regional Court of Appeal)                    mation of the laws of the Member States concerning the safety of
of 8 January 2004, received at the Court Registry on 12 January             toys (OJ L 187 of 16.07.1988, p. 1).
2004, for a preliminary ruling in the case of E. Bujura
against Inspecteur van de Belastingdienst Limburg / Kantoor
Buitenland, Heerlen on the following question: