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Document 62009CN0397

    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

    OJ C 312, 19.12.2009, p. 22–22 (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

    19.12.2009   

    EN

    Official Journal of the European Union

    C 312/22

    Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 14 October 2009 — Scheuten Solar Technology GmbH v Finanzamt Gelsenkirchen-Süd

    (Case C-397/09)

    2009/C 312/36

    Language of the case: German

    Referring court

    Bundesfinanzhof

    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 (1) — 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?

    (1)  OJ 2003 L 157, p. 49.

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