CELEX: C1999/333/29
Language: en
Date: 1999-11-20 00:00:00
Title: Case C-306/99: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 29 April 1999 in the case of Banque Internationale pour l'Afrique Occidentale S.A. (BIAO) in liquidation v Finanzamt für Großunternehmen in Hamburg

20.11.1999              EN                      Official Journal of the European Communities                                            C 333/13
— Infringement of Community law, inasmuch as the contest-                  1. Is Article 11(1) of Italian Law No 448 of 23 December
     ed order denied the appellants a form of effective legal                  1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
     protection, contrary to the provisions of Article 6 of the                supplement) compatible with Community law, in particu-
     European Convention for the Protection of Human Rights                    lar with Articles 10 and 12 of Council Directi-
     in conjunction with Article 6(2) of the Treaty on European                ve 69/335/EEC (1) of 17 July 1969 concerning indirect
     Union, by wrongly regarding the preliminary ruling pro-                   taxes on the raising of capital, inasmuch as it provides that
     cedure as an obligatory means of legal protection of the                  the administrative charge is payable at a flat annual rate
     interests of individuals.                                                 for registration of ‘other company documents’ for each of
                                                                               the years from 1985 to 1992, equal to the sum of the
                                                                               sum of ITL 750 000 for public limited companies and
                                                                               partnerships limited by shares and ITL 400 000 for private
                                                                               limited companies and ITL 90 000 for other companies?
                                                                           2. Is Article 11(3) of Law No 448/98 compatible with Com-
Reference for a preliminary ruling by the Tribunale di                         munity law, inasmuch as it provides that interest on the
Brescia, Terza Sezione Civile, (District Court, Brescia,                       sums to be reimbursed in so far as they exceed the
Third Civil Chamber) by order of 30 July 1999 in the                           sum provided for by Article 11(1) should be calculated
cases of (1) Markfactor SpA and (2) F. Apollonio & C. SpA                      according to the legal rate in force at the date on which
                 against Ministero delle Finanze                               that Law entered into force (2.5% per annum) and not
                                                                               according to the rate provided for by Article 5 with
                 (Cases C-303/99 and C-304/99)                                 respect to Article 1 of Law No 29 of 26 January 1961, as
                                                                               subsequently amended?
                          (1999/C 333/27)
                                                                           (1) OJ, English Special Edition 1969 (11), p. 412.
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Brescia,
Terza Sezione Civile, of 30 July 1999, received at the Court
Registry on 12 August 1999, for a preliminary ruling in the
cases of (1) Markfactor SpA and (2) F. Apollonio & C. SpA
against Ministero delle Finanze on the following question:
Is Article 11(1) of Italian Law No 448 of 23 December 1998                 Reference for a preliminary ruling from the Finanzgericht
(G.U.R.I. No 302 of 29 December 1998, ordinary supplement)                 Hamburg by order of that court of 29 April 1999 in the
compatible with Community law, in particular with Articles 10              case of Banque Internationale pour l’Afrique Occidentale
and 12 of Council Directive 69/335/EEC (1) of 17 July 1969                 S.A. (BIAO) in liquidation v Finanzamt für Großunterneh-
concerning indirect taxes on the raising of capital, inasmuch                                       men in Hamburg
as it provides that the administrative charge is payable at a flat
annual rate for registration of ‘other company documents’ for                                        (Case C-306/99)
each of the years from 1985 to 1992, equal to the sum of
the sum of ITL 750 000 for public limited companies and
partnerships limited by shares and ITL 400 000 for private                                           (1999/C 333/29)
limited companies and ITL 90 000 for other companies?
                                                                           Reference has been made to the Court of Justice of the
(1) OJ, English Special Edition 1969 (11), p. 412.                         European Communities by an order of the Finanzgericht
                                                                           Hamburg (Finance Court, Hamburg) of 29 April 1999, which
                                                                           was received at the Court Registry on 13 August 1999, for a
                                                                           preliminary ruling in the case of Banque Internationale pour
                                                                           l’Afrique Occidentale S.A. (BIAO) in liquidation v Finanzamt
                                                                           für Großunternehmen in Hamburg on the following questions:
Reference for a preliminary ruling by the Tribunale di
Brescia, Terza Sezione Civile, (District Court, Brescia,                   I. Jurisdiction of the Court of Justice to give a preliminary ruling
Third Civil Chamber) by order of 30 July 1999 in the case
      of Leglerdata SpA against Ministero delle Finanze
                                                                           Does the Court of Justice have jurisdiction in the procedure
                                                                           for preliminary rulings under Article 177 of the EC Treaty (old
                          (Case C-305/99)                                  version) (Article 234 EC in the version in force from 1 May
                                                                           1999 under the Treaty of Amsterdam of 2 October 1997 (new
                          (1999/C 333/28)                                  version)) to interpret the Fourth Council Directive 78/660/EEC
                                                                           of 25 July 1978 on the annual accounts of certain types of
Reference has been made to the Court of Justice of the                     companies (OJ 1978 L 222, p. 11, ‘the Directive’) not only
European Communities by order of the Tribunale di Brescia,                 where there is doubt as to the application in conformity with
Jerza Sezione Civile, of 30 July 1999, received at the Court               the Directive of the national commercial law on accounts of
Registry on 12 August 1999, for a preliminary ruling in the                capital companies [in this case, Paragraph 264 et seq. of the
case of Leglerdata SpA against Ministero delle Finanze on the              German Handelsgesetzbuch (Commercial Code, ‘the HGB’)],
following questions:                                                       but also:
 ---pagebreak--- 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