Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 6 October 2008 — F. Gielen, other party: Staatssecretaris van Financiën

(Case C-440/08)

(2008/C 327/24)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: F. Gielen

Other party: Staatssecretaris van Financiën

Question referred

Is Article 43 EC to be interpreted as meaning that it does not preclude the application of a provision in a Member State's tax legislation to profits which a national of another Member State (foreign taxable person) has derived from a part of his undertaking operated in the first Member State, if that provision, when interpreted in a particular way, indeed makes a distinction between domestic and foreign taxable persons which — viewed in isolation — is contrary to Article 43 EC, but the foreign taxable person concerned has had an opportunity to opt for treatment as a domestic taxable person and has not done so for reasons of his own?