X AB and Y AB v Riksskatteverket.
Date: 1999-11-18
14 It is settled case-law that in order to determine whether a body making a reference for a preliminary ruling is a court or tribunal within the meaning of Article 177 of the Treaty, which is a question governed by Community law alone, the Court will take account of a number of factors, such as whether the referring body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see Case 61/65 Vaassen (née Göbbels) [1966] ECR 261, at 272 and 273, and Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 23).
15 Furthermore, national courts may refer questions to the Court only if there is a case pending before them and they are called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, in particular, the order of 18 June 1980 in Case 138/80 Borker [1980] ECR 1975, paragraph 4 and the judgment in Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14).
16 As the Advocate General points out in paragraph 12 of his Opinion, since there appears to be no doubt that the Regeringsrätten satisfies all the other conditions laid down by the case-law of the Court, it only remains to determine whether the Regeringsrätten is called upon to give judgment in proceedings which are intended to lead to a judicial decision, when seised with an appeal against a ruling of the Skatterättsnämnden.
17 It is sufficient to observe here that, in the case of an appeal, the purpose of the procedure before the Regeringsrätten is to review the legality of a preliminary decision which, once it becomes definitive, binds the tax authorities and serves as the basis for the assessment to tax if and to the extent to which the person who applied for the preliminary decision continues with the action envisaged in his application.  In those circumstances, the Regeringsrätten must be held to be carrying out a judicial function (see, in particular, Victoria Film, cited above, paragraph 18).
18 As regards the hypothetical nature of the question submitted, it is to be remembered that the Court has stated that, by virtue of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, for example, Case C-127/92 Enderby [1993] ECR I-5535, paragraph 10, and Case C-125/94 Aprile [1995] ECR I-2919, paragraph 16).
19 Consequently, since the questions submitted by the national court relate to the interpretation of a provision of Community law, the Court is in principle bound to give a ruling (see Case C-83/91 Meilicke [1992] ECR I-4871, paragraph 24, and Aprile, cited above, paragraph 17).
20 The position would be different only if the Court were called on to give a ruling on a problem of a hypothetical nature (see Case 244/80 Foglia [1981] ECR 3045, paragraphs 18 and 20, and Meilicke, cited above, paragraph 25).
21 As regards the circumstances in which the Court has been asked to give a preliminary ruling in this instance, it is true that the national court which made the reference is called on to give a ruling in proceedings concerning the possibility for X AB to carry out in the future an intra-group transfer for the benefit of Y AB under certain conditions.  On the date on which its decision to make a reference was made, X AB had still not carried out that transfer.
22 However, that circumstance is not by nature such as to render the preliminary question inadmissible.  The national court is seised of a genuine dispute, so that, far from being asked to rule on a hypothetical problem, the Court has sufficient information at its disposal regarding the circumstances with which the main proceedings are concerned to enable it to interpret the rules of Community law and to give a helpful answer to the question submitted to it (see Aprile, cited above, paragraph 20).
26 As far as the provisions concerning freedom of establishment are concerned, it must be pointed out that, even though, according to their wording, those provisions are mainly aimed at ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation which comes within the definition contained in Article 58 of the Treaty (Case 81/87 Daily Mail and General Trust [1988] ECR 5483, paragraph 16, and Case C-264/96 ICI [1998] ECR I-4695, paragraph 21).