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C 131/20 EN Official Journal of the European Union 3.6.

2006

Operative part of the judgment Re:

1. Article 19 of Council Directive 86/653/EEC of 18 December Preliminary ruling — Bundesfinanzhof — Interpretation of


1986 on the coordination of the laws of the Member States Article 52 of the EC Treaty (now, after amendment, Article
relating to self-employed commercial agents must be interpreted as 43 EC), Article 58 and Article 73b of the EC Treaty (now
meaning that the indemnity for termination of contract which Article 48EC and 56 EC) — Corporation tax — Non-deduct-
results from the application of Article 17(2) of the directive ibility of expenditure having a direct economic link to tax-free
cannot be replaced, pursuant to a collective agreement, by an profits — Expenditure incurred by a parent company estab-
indemnity determined in accordance with criteria other than those lished in a Member State linked to its shareholding in a
prescribed by Article 17, unless it is established that the applica- subsidiary established in the same Member State, in connection
tion of such an agreement guarantees the commercial agent, in with dividends distributed by a second-tier subsidiary which are
every case, an indemnity equal to or greater than that which exempted from tax by virtue of the fact that this latter
results from the application of Article 17. company is established in another Member State

2. Within the framework prescribed by Article 17(2) of Directive


86/653, the Member States enjoy a margin of discretion which Operative part of the judgment
they may exercise, in particular, in relation to the criterion of
equity.
Article 52 of the EC Treaty (now, after amendment, Article 43 EC)
and Article 31 of the Agreement on the European Economic Area of
2 May 1992 must be interpreted as precluding legislation of a
(1) OJ C 31 of 05.02.2005.
Member State which excludes the possibility of deducting for tax
purposes financing costs incurred by a parent company subject to
unlimited tax liability in that State in order to acquire holdings in a
subsidiary where those costs relate to dividends which are exempt from
tax because they are derived from an indirect subsidiary established in
another Member State or in a State which is party to the Agreement,
whereas such costs may be deducted where they relate to dividends
paid by an indirect subsidiary established in the same Member State
Judgment of the Court (First Chamber) of 23 February as that of the place of the registered office of the parent company and
2006 (reference for a preliminary ruling from the Bundes- which, in reality, also benefit from a tax exemption.
finanzhof) — Finanzamt Offenbach am Main-Land v Keller
Holding GmbH
(1) OJ C 19, 22.01.2005.
(Case C-471/04) (1)

(Freedom of establishment — Corporation tax — Right of a


parent company to deduct costs relating to its shareholdings
— Non-deductible financing costs having an economic link
with dividends exempt from tax — Dividends distributed by
an indirect subsidiary established in a Member State other Judgment of the Court (Second Chamber) of 23 February
than that in which the parent company has its seat) 2006 (reference for a preliminary ruling from the VAT
and Duties Tribunal, Manchester) — Dolland & Aitchison
(2006/C 131/35) Ltd v Commissioners of Customs & Excise

(Case C-491/04) (1)


Language of the case: German

(Community Customs Code — Customs value — Customs


import duties — Delivery of goods by a company established
in Jersey and supplies of services effected in the United
Referring court Kingdom)

(2006/C 131/36)
Bundesfinanzhof

Language of the case: English

Parties to the main proceedings

Applicant: Finanzamt Offenbach am Main-Land Referring court

Defendant: Keller Holding GmbH VAT and Duties Tribunal, Manchester


3.6.2006 EN Official Journal of the European Union C 131/21

Parties to the main proceedings Parties to the main proceedings

Applicant: Dolland & Aitchison Ltd Applicant: Hans Werhof


Defendant: Commissioners of Customs & Excise
Defendant: Freeway Traffic Systems GmbH & Co. KG

Re:
Re:
Reference for a preliminary ruling — VAT and Duties Tribunal,
Manchester — Interpretation of Articles 29 and 30 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing Reference for a preliminary ruling — Landesarbeitsgericht
the Community Customs Code (OJ 1992 L 302, p. 1) — Düsseldorf — Interpretation of Article 3(1) of Council Directive
Customs value of imported goods — Contact lenses delivered 98/50/EC of 29 June 1998 amending Directive 77/187/EEC on
by post by a company established in a third territory (the the approximation of the laws of the Member States relating to
Island of Jersey) belonging to a company established in a the safeguarding of employees' rights in the event of transfers
Member State supplying examination, consultation and after- of undertakings, businesses or parts of businesses (OJ 1998 L
care services for contact lenses 201, p. 88) — Obligations of the transferee with regard to
retention of more favourable pay conditions resulting from a
collective agreement applicable to the transferor and the
Operative part of the judgment employee at the time of the transfer

1. Article 29 of Council Regulation (EEC) No 2913/92 of 12


October 1992 establishing the Community Customs Code must
Operative part of the judgment
be interpreted as meaning that, in circumstances such as those of
the main proceedings, payment for the supply of specified services,
such as examination, consultation or aftercare required in connec- Article 3(1) of Council Directive 77/187/EEC of 14 February 1977
tion with contact lenses, and for specified goods, consisting of on the approximation of the laws of the Member States relating to
those lenses, the cleaning solutions and the soaking cases, consti- the safeguarding of employees' rights in the event of transfers of
tutes as a whole the ‘transaction value’ within the meaning of undertakings, businesses or parts of businesses must be interpreted as
Article 29 of the Customs Code and is, therefore, dutiable. not precluding, in a situation where the contract of employment refers
to a collective agreement binding the transferor, that the transferee,
2. The principles laid down in the CCP judgment (Case C-349/96) who is not party to such an agreement, is not bound by collective
of 25 February 1999 cannot be used directly to determine the agreements subsequent to the one which was in force at the time of
elements of the transaction to be taken into account for the the transfer of the business.
purposes of applying Article 29 of the Customs Code.

(1) OJ C 31 of 05.02.2005.
( ) OJ C 45, 19.02.2005.
1

Judgment of the Court (Sixth Chamber) of 16 February


Judgment of the Court (Third Chamber) of 9 March 2006 2006 (reference for a preliminary ruling from the Finanz-
(reference for a preliminary ruling from the Landesarbeits- gericht Düsseldorf) — Proxxon GmbH v Oberfinanzdirek-
gericht Düsseldorf) — Hans Werhof v Freeway Traffic tion Köln
Systems GmbH & Co. KG

(Case C-499/04) (1) (Case C-500/04) (1)

(Transfer of undertakings — Directive 77/187/EEC — Safe- (Tariff classification — Hand-operated spanners and
guarding of employees' rights — Collective agreement applic- wrenches and interchangeable spanner sockets)
able to the transferor and the employee at the time of the
transfer) (2006/C 131/38)
(2006/C 131/37)
Language of the case: German
Language of the case: German

Referring court Referring court

Landesarbeitsgericht Düsseldorf Finanzgericht Düsseldorf (Germany)