CELEX: C1999/001/18
Language: en
Date: 1999-01-04 00:00:00
Title: Reference for a preliminary ruling from Överklagandenämnden för Högskolan by order of that body of 14 October 1998 in the case of 1. Katarina Abrahamsson and 2. Leif Anderson against Elisabet Fogelqvist (Case C-407/98) (1999/C 1/18)

C 1/10               EN                  Official Journal of the European Communities                                      4.1.1999
Reference      for      a     preliminary     ruling    from             authority's sphere of activity or the highest posts in
Överklagandenämnden för Högskolan by order of that                       that sphere?
body of 14 October 1998 in the case of 1. Katarina
Abrahamsson and 2. Leif Anderson against Elisabet
                                                                    (1) OJ L 39, 14.2.1976, p. 40.
                           Fogelqvist
                       (Case C-407/98)
                         (1999/C 1/18)
Reference has been made to the Court of Justice of                  Reference for a preliminary ruling by the High Court of
the      European       Communities       by      order    of       Justice (England & Wales), Queen's Bench Division,
Överklagandenämnden för Högskolan (Universities                     Divisional Court, by order of that court of 2 November
Appeals Board) of 14 October 1998, received at the Court            1998, in the case of Abbey National plc against
Registry on 26 October 1998, for a preliminary ruling in                        Commissioners of Customs and Excise
the case of 1. Katarina Abrahamsson and 2. Leif Anderson
against Elisabet Fogelqvist on the following question:                                      (Case C-408/98)
                                                                                              (1999/C 1/19)
1. Do Articles 2(1) and 2(4) of Council Directive
    76/207/EEC (1) of 9 February 1976 on the
    implementation of the principle of equal treatment for          Reference has been made to the Court of Justice of the
    men and women as regards access to employment,                  European Communities by an order of the High Court of
    vocational training and promotion, and working                  Justice (England & Wales), Queen's Bench Division,
    conditions preclude national legislation under which            Divisional Court, of 2 November 1998, which was
    an applicant of the underrepresented sex possessing             received at the Court Registry on 17 November 1998, for
    sufficient qualifications for a public post is to be            a preliminary ruling in the case of Abbey National plc
    selected in priority over an applicant of the opposite          against Commissioners of Customs and Excise, on the
    sex who would otherwise have been selected (positive           following questions:
    special treatment') if there is a need for an applicant
    of the underrepresented sex to be selected and under
    which positive special treatment is not to be applied           1. Having regard to the terms of Article 17(2) of the
    only if the difference between the applicants'                       Sixth VAT Directive (1), do the words in Article 5(8)
    qualifications is so great that such treatment would be              thereof the recipient shall be treated as the successor
    contrary to the requirement of objectivity in the                    to the transferor' require that the recipient's supplies
    making of appointments?                                              should be treated as if they had been made by the
                                                                         transferor, for the purpose of determining the
                                                                         transferor's input tax deduction?
2. If the answer to Question 1 is in the affirmative, is
    positive special treatment not permissible in such a
    case even if application of the national legislation is         2. In the event of a transfer . . . of a totality of assets or
    restricted to appointments to either a limited number                part thereof' within Article 5(8) of the Sixth VAT
    of pre-determined posts (as under Regulation                         Directive, where the Member State, by virtue of
    1995/936) or posts created as part of a special                      national measures adopted pursuant to that article,
    programme adopted by an individual university                        considers that no supply of goods or services has taken
    under which positive special treatment may be                        place, may the taxpayer, upon the proper
    applied (as under Article 15(a) of Part 4 of                         interpretation of Article 5(8) and Article 17(2), deduct
    Högskoleförordningen)?                                               the whole of the input tax in respect of costs
                                                                         attributable to the transfer, if the taxpayer would, part
                                                                         from the application of Article 5(8), be obliged to
3. If the answer to Question 2 means that treatment like                 account for output tax on the transfer?
    positive special treatment is in some respect unlawful,
    can the rule, based on Swedish administrative practice
    and the second paragraph of Article 15 of Part 4 of             3. Where the economic activity of the transferor prior to
    Högskoleförordningen Ð approved by the Appeals                       the transaction falling within Article 5(8) has been
    Board Ð that an applicant belonging to the                           fully taxable, is input tax deductible in respect of a
    underrepresented sex must be given priority over a                   payment made in connection with the termination of
    fellow applicant of the opposite sex, provided that the              that activity?
    applicants can be regarded as equal or nearly equal in
    terms of merit, be regarded as being in some respect
                                                                    (1) Council Directive 77/388/EEC of 17 May 1977 on the
    contrary to Directive 76/207/EEC?                                   harmonisation of the laws of the Member States relating to
                                                                        turnover taxes Ð Common system of value added tax:
                                                                        uniform basis of assessment (OJ L 145, 13.6.1977, p. 1).
4. Does it make any difference in determining the
    questions set out above whether the legislation
    concerns lower-grade recruitment posts in an