CELEX: C1999/001/14
Language: en
Date: 1999-01-04 00:00:00
Title: Reference for a preliminary ruling from the Bundesfinanzhof (Federal Finance Court) by order of that court of 27 August 1998 in the case of Finanzamt Goslar v. Brigitte Breitsohl (Case C-400/98) (1999/C 1/14)

C 1/8                   EN                 Official Journal of the European Communities                                      4.1.1999
       the election or claim, relying upon the primacy and                 services is to be concluded, where such services exceed
       direct effect of the provisions of Community law?                   the threshold laid down by the relevant directives.
                                                                      (1) Council Directive 93/37/EEC, (OJ L 199, 9.8.1993, p. 54).
(1) Application of the Income and Corporation Taxes Act 1988,         (2) Pubblica Amministrazione (Public authority).
    and in particular of the United Kingdom tax rules relating to
    the payments of dividends by the United Kingdom resident
    companies whose parent companies are resident in other
    Member States.
(2) Case C-66/95.
                                                                      Reference for a preliminary ruling from the
                                                                      Bundesfinanzhof (Federal Finance Court) by order of that
                                                                      court of 27 August 1998 in the case of Finanzamt Goslar
                                                                                             v. Brigitte Breitsohl
                                                                                               (Case C-400/98)
Reference for a preliminary ruling by the Tribunale                                             (1999/C 1/14)
Amministrativo Regionale per la Lombardia, Milan, by
order of that court of 11 June 1998, in the case of Ordine
degli Architetti delle Province di Milano e Lodi and Piero            Reference has been made to the Court of Justice of the
de Angelis, Architect, v. Comune di Milano, SocietaÁ                  European       Communities        by     an   order    of     the
Pirelli, Milano Centrale Servizi SpA and Ente Autonomo                Bundesfinanzhof (Federal Finance Court) of 27 August
                         Teatro alla Scala                            1998, which was received at the Court Registry on
                                                                      9 November 1998, for a preliminary ruling in the case of
                         (Case C-399/98)                              Finanzamt Goslar v. Brigitte Breitsohl on the following
                                                                      questions:
                          (1999/C 1/13)
                                                                      1. According to the case-law of the Court of Justice of
                                                                           the European Communities (judgment in Case
Reference has been made to the Court of Justice of the                     C-110/94 (1) INZO), even the very first investment
European Communities by an order of the Tribunale                          expenditure incurred for the purposes of a business
Amministrativo Regionale per la Lombardia, Milan,                          may be regarded as an economic activity within the
(Regional Administrative Court for Lombardy) of 11 June                    meaning of Article 4 of Council Directive
1998, which was received at the Court Registry on                          77/388/EEC (2). The tax authority has to take account
9 November 1998, for a preliminary ruling in the case of                   of the business person's declared intention in this
Ordine degli Architetti delle Province di Milano e Lodi                    regard. The status of taxable person accorded on that
and Piero de Angelis, Architect, v. Comune di Milano,                      basis cannot, in principle, be withdrawn retroactively
SocietaÁ Pirelli, Milano Centrale Servizi SpA and Ente                     on account of certain events having or having not
Autonomo Teatro alla Scala, on the following questions:                    occurred (principle of legal certainty). This also applies
                                                                           to the deductions relating to the investment
                                                                           transactions.
1. Whether or not the State and regional legislation                       According to those principles, is the right to deduct
     which allows a builder (who holds a building permit                   tax (Article 17 of Directive 77/388/EEC) on setting
     or approved development plan) to carry out                            up' expenditure to be accorded on the basis of the
     development works directly, in total or partial                       intention to take up economic activity leading to
     discharge of the amount owed (Article 11 of Law                       taxable transactions even where the revenue authority
     No 10/77, Articles 28 and 31 of Law No 1150 of                        is already aware, when the first tax assessment is
     17 August 1942, Articles 8 and 12 of Law No 60 of                     made, that the intended economic activity leading to
     the Lombardy Region of 5 December 1977), is                           taxable transactions was not actually taken up?
     contrary to Council Directive 93/37/EEC (1), in the
     light of the strict tendering principles imposed on the
     Member States by Community law in relation to all                If the answer to Question 1 is in the affirmative:
     public works of a value of ECU 5 million or more.
                                                                      2. In the case of a supply of buildings or parts thereof
                                                                           and of the land on which they stand, can the option
                                                                           for taxation be restricted to the buildings and parts
2. Whether, notwithstanding the principles concerning
                                                                           thereof?
     tendering referred to above, agreements between the
     administration and a private person (generally allowed
     by Article 11 of Law No 241 of 7 August 1990) may                (1) [1996] ECR I-857.
     be regarded as compatible with Community law in                  (2) OJ L 145, 13.6.1977, p. 1.
     areas in which the procedure is that the P.A. (2)
     chooses a party with whom a contract for such