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C 330/8 EN Official Journal of the European Union 24.12.

2005

3. If the answer to the second question is that Member States effect that they prohibit the levying of stamp duty, by virtue
can select which ‘special investment funds’ benefit from the of national legislation such as Decree Law No 322-B/2001
exemption, how do the principles of fiscal neutrality, equal of 14 December 2001, which inserted paragraph 26 —
treatment and the prevention of distortion of competition Capital Duty — in the General Table of Stamp duty, on a
affect the exercise of that discretion? limited company governed by Portuguese law when its
capital is increased, by payments in cash, when, as at 1 July
1984, that transaction was subject to that duty but was
4. Does Article 13B(d)(6) have direct effect? exempted from it?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo- (1) OJ L 249, p. 25.
nization of the laws of the Member States relating to turnover taxes (2) O L 156, p. 23.
– Common system of value added tax: uniform basis of assessment,
OJ L 145, 13.06.1977, p. 1

Appeal brought on 10 October 2005 by Bart Nijs against


the order made on 26 May 2005 by the Court of First
Reference for a preliminary ruling from the Supremo Instance of the European Communities (Second Chamber)
Tribunal Administrativo by order of that court of 6 July in Case T-377/04 between Bart Nijs and the Court of Audi-
2005 in Optimus — Telecomunicações, S.A. v Fazenda tors of the European Communities
Pública

(Case C-373/05 P)
(Case C-366/05)

(2005/C 330/16)
(2005/C 330/15)

(Language of the case: French)


(Language of the case: Portuguese)

An appeal against the order made on 26 May 2005 by the


Court of First Instance of the European Communities (Second
Reference has been made to the Court of Justice of the Euro- Chamber) in Case T-377/04 between Bart Nijs and the Court of
pean Communities by order of the Supremo Tribunal Adminis- Auditors of the European Communities was brought before the
trativo of 6 July 2005, received at the Court Registry on 29 Court of Justice of the European Communities on 10 October
September 2005, for a preliminary ruling in the proceedings 2005 by Bart Nijs, represented by Fränk Rollinger, lawyer.
between Optimus — Telecomunicações, S.A. and Fazenda
Pública on the following questions: The applicant claims that the Court should:

1. Must Article 7(1) of Council Directive 69/335/EEC (1) of 17 — declare this appeal admissible in form;
July 1969 concerning indirect taxes on the raising of
capital, as amended by Council Directive 85/303/EEC (2) of
10 June 1985, be interpreted restrictively so as to impose as — declare this appeal well-founded on the substance;
a precondition for the obligation which it imposes on
Member States to exempt certain transactions involving the
— find that the subject-matter of Bart Nijs's complaint of 27
raising of capital the requirement that the transactions in
February 2004 is identical to the subject-matter of his
question must be those which, under the wording of the
application lodged on 16 September 2004 at the Registry
directive prior to 1985, could be exempted from the duty
of the Court of First Instance;
or taxed at a reduced rate — that is to say only those
referred to in Article 4(2) and Article 8 — and which, in
addition, were in that situation as at 1 July 1984? — declare the application of Bart Nijs admissible;

2. Must Article 7(1) of Council Directive 69/335/EEC of 17 — consequently, annul the order of the Second Chamber of
July 1969 concerning indirect taxes on the raising of the Court of First Instance of 26 May 2005 and refer this
capital, as amended by Council Directive 85/303/EEC of 10 case back to the Court of First Instance with a different
June 1985, and Article 10 thereof be interpreted to the composition for a hearing.
24.12.2005 EN Official Journal of the European Union C 330/9

Pleas in law and main arguments 1992 (3) as amended by Commission Regulation (EC) No
2311/96 of 2 December 1996 (4):

The applicant submits that the Court of First Instance wrongly (a) Has a producer not made use of premium rights during a
found that Bart Nijs's application was inadmissible, while he marketing year if he has applied for a premium but his
maintains that the pre-litigation procedure, and more specifi- application has been rejected because the animals
cally Article 90(2) of the Statute, was complied with. concerned were not eligible for premiums?

Is this also the case if there is no indication of an improper


application having been made?

Would this be compatible with the Community principle of


proportionality?
Reference for a preliminary ruling from the Bundesver-
waltungsgericht by order of that court of 23 August 2005
in Erhard Geuting v Direktor der Landwirtschaftskammer (b) Should Article 33(2) of Regulation (EEC) No 3886/92 be
Nordrhein-Westfalen interpreted as meaning that, in an instance such as this,
premium rights are maintained because it constitutes a
(duly justified) exceptional case?
(Case C-375/05)
(c) Should premium rights that are withdrawn from a producer
under Article 33(4) of Regulation (EEC) No 3886/92
(2005/C 330/17) because he made use of more than 70 % but less than 90 %
of his premium rights in the 1998 marketing year be
granted to that producer on a preferential basis on the
expiry of the two-year exclusion period?
(Language of the case: German)

(1) OJ, English Special Edition 1968 (I), p. 187.


(2) OJ L 215, p. 49.
(3) OJ L 391, p. 20.
Reference has been made to the Court of Justice of the Euro-
(4) OJ L 313, p. 9.
pean Communities by order of the Bundesverwaltungsgericht
of 23 August 2005, received at the Court Registry on 12
October 2005, for a preliminary ruling in the proceedings
between Erhard Geuting and the Direktor der Landwirtschafts-
kammer Nordrhein-Westfalen on the following questions:

1. For the purposes of Article 4a(ii) of Regulation (EEC) No


805/68 of the Council of 27 June 1968 (1) as amended by
Council Regulation (EEC) No 2066/92 of 30 June 1992 (2): Reference for a preliminary ruling from the Cour de cassa-
tion (Belgium) by judgment of that court of 9 September
2005 in Samotor SPRL v Belgian State
(a) Is an in-calf heifer only a suckler cow within the
meaning of the first section of the regulation if it
replaces a suckler cow for which an application for a
premium has been made? (Case C-378/05)

(b) Is an in-calf heifer also a suckler cow within the


meaning of the first section of the regulation if, in the (2005/C 330/18)
previous marketing year, it replaced a suckler cow for
which an application for a premium had been made and
was regarded as eligible for a premium?
(Language of the case: French)

(c) Is an in-calf heifer for which application for a premium


has been made to be regarded at any rate as eligible for
a premium if it calves before the end of the period for
lodging applications?
Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour de cassation
2. The following questions are also referred to the Court of (Belgium) of 9 September 2005, received at the Court Registry
Justice of the European Communities for a preliminary on 14 October 2005, for a preliminary ruling in the proceed-
ruling on the interpretation of Article 33(2) and (4) of ings between Samotor SPRL and the Belgian State on the
Commission Regulation (EEC) No 3886/92 of 23 December following questions: