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Case C-397/09: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 14 October 2009 — Scheuten Solar Technology GmbH v Finanzamt Gelsenkirchen-Süd
ECLI:EU:UNKNOWN:62009CN0397
62009CN0397
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Valentina R., lawyer
19.12.2009
Official Journal of the European Union
C 312/22
(Case C-397/09)
2009/C 312/36
Language of the case: German
Referring court
Parties to the main proceedings
Applicant: Scheuten Solar Technology GmbH
Defendant: Finanzamt Gelsenkirchen-Süd
Questions referred
1.Does Article 1(1) of Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States — the EU interest and royalties directive — preclude a provision under which loan interest paid by a company of one Member State to an associated company of another Member State is added to the basis of assessment to trade tax for the first company?
2.If so, is Article 1(10) of Directive 2003/49 to be interpreted as meaning that a Member State has the option of not applying the directive even where the conditions set out in Article 3(b) in relation to the existence of an associated company have not yet been maintained for an uninterrupted period of at least two years at the time of payment of the interest? Can the Member States rely, in respect of the paying company, directly on Article 1(10) of the directive in those circumstances?
* Language of the case: German.
(1) OJ 2003 L 157, p. 49.