C-306/99

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OPINION OF ADVOCATE GENERAL JACOBS delivered on 15 November 2001 1

1. This reference by the Finanzgericht 3. The main proceedings concern the tax (Finance Court), Hamburg, raises an assessment for 1989 of the Hamburg important question about the scope of the branch of a French bank. Neither branches jurisdiction of the Court of Justice to rule nor banks are within the scope of the on questions referred by national courts Fourth Directive. The amount of tax pay- and provides the Court with the oppor- able depends on the correct valuation of a tunity to reconsider its decisions in Leur- provision made in the balance sheet dated Bloem 2 and Giloy. 3 31 December 1989. The national legal context which determines the trader's tax- able income is essentially as follows:

2. The referring court puts a number of detailed questions about the interpretation of certain technical provisions of the Fourth Company Law Directive on company — German trade tax law refers (subject to accounts. 4Those questions arise however specific trade tax provisions) to Ger- in proceedings which concern the account- man corporation and income tax law; ing treatment for tax purposes — not covered by the Directive — of a provision in the balance sheet of a trader which is outside the scope of the Directive. The provisions of the Directive are therefore relevant only by virtue of a number of complex references and assumptions under national law.

1 — Original language: English. 2 — Case C-28/95 |1997] ECR I-4161. 3 — Case C-130/95 |1997] ECR I-4291. — German corporation tax law refers 4 — Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of (subject to specific corporation tax certain types of companies, OJ 1978 L 222, p. 11. provisions) to German income tax law;

4. In my view the question arises — and 1. where elements of the Directive were the national court has expressly referred taken over when it was transposed into three questions concerning admissibility — the national commercial accounting whether in that context the Court has law applicable to all traders (in this jurisdiction to interpret provisions of the case Paragraph 238 et seq. of the Fourth Directive. HGB), even though for them the "true

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and fair view" requirement set out in (b) where the specific accounting the preamble to and Article 2 of the provisions for capital companies Directive was not adopted in the word- (Paragraph 264 et seq. of the HGB) ing of the legislation (unlike in the case apply; of capital companies, Paragraphs 264(2) and 289(1) of the HGB);

3. where national tax law refers in another connection to concepts or criteria from commercial accounting law?

(a) it already existed when the basic (a) May a creditworthiness risk which transaction was entered into, and is not acute but merely latent be covered by a global value adjust- ment, not only in the form of writing down a debt but also by means of a provision for a con- tingent (guarantee) liability? (b) it is many times greater than the profit or earnings to be made from it (in this case, a guarantee fee for a period of less than one year)?

(b) May a not preponderantly prob- able country risk be taken into account by means of a country- related globalised value adjustment 5. Are the country risk and the creditwor- (globalised individual value adjust- thiness risk to be taken into account, if ment), not only in the form of necessary, alongside each other for the writing down a debt but also by same loan by means of a value adjustment means of a provision for a con- or a provision, whether as a single amount tingent (guarantee) liability? or as separate amounts?

3. Is it permitted or required to ascertain 6. Is a combination of provisions for risk the country risk on the basis of one's also permissible if one risk is ascertained own connections, experience and infor- individually and the other risk globally?

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2. Does a loan repayment between the 7. Moreover the Fourth Directive does not balance-sheet date and the date on apply to banks and other financial institu- which the balance sheet is drawn up tions, 8 which are governed by a subsequent constitute a (retrospectively) value- clarifying fact and not merely a value- influencing fact which has effect only 5 — It was subsequently — and after the events giving rise to in the year of repayment? the main proceedings — amended by Council Directive 90/605/EEC of 8 November 1990 amending Directive 78/660/EEC on annual accounts and Directive 83/349/EEC on consolidated accounts as regards the scope of those Directives (OJ 1990 L 317, p. 60) so as to bring within its scope certain other entities including the G m b H & Co KG, a limited partnership between a private company and its members. 6 — Article 1(1). 3. For value clarifications of risks which 7 — Although it must now require such branches to disclose the accounting documents of their company 'drawn up, audited are of relatively slight importance for and disclosed pursuant to the law of the Member State by which the company is governed' in accordance with inter the undertaking concerned, instead of alia the Fourth Directive: see the Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure the period up to the signature of the requirements in respect of branches opened in a Member balance sheet or the establishment of State by c e r t a i ntypes of company governed by the law of another State, OJ 1989 L 395, p. 36. The Directive required the annual accounts, may the date on i m p l e m e n t a t i o n with effect from 1 J a n u a r y 1993 (Article 16(2)) and is hence on that ground alone irrelevant which valuation of the relevant bal- to the present case. ance-sheet item is completed be taken?' 8 — Article 1(2).

'Whereas annual accounts must give a true and fair view of a company's assets and 11. The Directive contains rules on inter 9 — Council Directive 86/635/EEC of 8 December 1986 on the alia the accounting treatment of commit- annual accounts and consolidated accounts of banks and ments by way of guarantee (Article 14), the other financial institutions, OJ 1986 L 372, p. 1. 10 — Directive 86/635 required implementation by 31 December value adjustment of balance sheet items 1990. It was implemented in Germany by the Bank- (Articles 19 and 39(1)(b) and (c)), provi- bilanzrichtlinie-Gesetz of 30 November 1990, Bundesge- setzblatt I, p. 2570 and the Verordnung über die sions for l i a b i l i t i e s and charges Rechnungslegung der Kreditinstitute (RechKredV) of 10 February 1992, Bundesgesetzblatt I, p. 203. (Articles 20(1) and 42), the separate valu- 11 — Article 1(1) of Directive 86/635. a t i o n of b a l a n c e s h e e t i t e m s 12 — Article 2(1). (Article 31(1)(e)) and the valuation of 13 — Council Directive 89/117/EEC of 13 February 1989 on the obligations of branches established in a Member State of post-balance-sheet-date liabilities and credit institutions and financial institutions having their head offices outside that Member State regarding the losses (Article 31(1)(c)(bb)). Some or all publication of annual accounting documents, 1989 OJ of the matters covered by those rules are at L 44, p. 40. 14 — Article 6(1). Directive 89/117 was implemented in Ger- many by the RechKredV, cited in note 10. 15 —Article 2(1). 17 — Case C-234/94 Tomberger [1996] ECR I-3133, paragraph 16 —Article 2(3). 17 of the judgment.

'The accounting entries and the other 14. The 'true and fair view' requirement in records required must be done in a com- the preamble to and Article 2 of the plete, correct, timely and orderly manner.'

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17. Paragraph 242(1) provides in so far as sentence of Paragraph 242(1) the balance relevant: sheet must give a correct picture of the assets and liabilities.

'A trader must at the start of his business and at the end of each trading year draw up accounts (opening balance, balance sheet) showing his assets and his liabilities.' 20. The special provisions for the annual accounts of capital companies commence with Paragraph 264 of the HGB and explicitly adopt the 'true and fair view' requirement.

18. Paragraph 243(1) and (2) provides:

'In the annual report, at least the course of business and the situation of the capital company are to be presented in such a way that a true and fair view (ein den tatsäch- lichen Verhältnissen entsprechendes Bild) is given; in addition, the risks of future 25. The national court's first question con- developments must also be mentioned.' cerning the Court's jurisdiction to give a preliminary ruling on the interpretation of the Fourth Directive arises in that context. More specifically, it asks whether the Court has jurisdiction where, on implementation of the Directive, elements thereof were 23. The referring court notes that there is a incorporated into the national commercial view that the German legislature intended accounting law applicable to all traders the Fourth Directive to be implemented even though for such traders (in contrast to solely by Section 2 of Book III of the HGB. capital companies) the legislation does not It is none the less recognised that certain impose the 'true and fair view' requirement- accounting rules, which had previously set out in the preamble to and Article 2 of applied to all traders and which were also the Directive. reflected in the Directive, were included in Section 1 of Book III of the HGB. Those rules include the specific provisions of the Directive at issue in the present case. 18

26. The referring court considers that the case-law of the Court of Justice so far 24. The referring court adds that the Court suggests that the Court has jurisdiction. has accordingly held that it has jurisdiction, According to that case-law (Leur-Bloem 20 in the case of a capital company, to inter- and Giloy 21), the Court has jurisdiction in pret the Directive in the context of the the preliminary ruling procedure to inter- application in accordance with the Direc-

'Trading profit is the profit, determined in accordance with the provisions of the 30. The referring court explains that under Einkommensteuergesetz or the Körper- that provision the commercial law 'prin- schaftsteuergesetz, of a business, which is ciples of proper accounting' are decisive to be taken into account in calculating the where there are no overriding specific fiscal income for the... period of assessment.' rules concerning the balance sheet. I - 14

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32. The national court adds that it is 34. With regard to question (a), the refer- debatable whether or to what extent, in ring court considers that the Court has addition to the principles of proper jurisdiction to interpret the Directive in the accounting which apply to all traders, the context of the applicability for tax law 'true and fair view' requirement applies by purposes of the commercial law principles virtue of the first sentence of Paragraph of proper accounting since the provisions of 5(1) of the EStG. Section 1 of Book III of the HGB which apply to all traders (i) are covered by the tax-law reference and (ii) transpose 22 — Set out in paragraph 15 above. 23 — Set out in paragraph 18 above. elements of the Directive for capital com- 24 —• Paragraphs 246 to 256. panies and for other traders in the same 25 — Paragraph 38. way.

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40. The issue of jurisdiction has been the 38. The position is different however in the subject of full argument by all those case of a provision for liability. As indi- presenting observations — in writing by cated above, 2 7the principles of proper the Finanzamt für Großunternehmen in accounting are applicable pursuant to the Hamburg (the defendant in the main pro-

26 — Case C-275/97 [1999] ECR I-5331, paragraph 26 et seq. 28 — The national court explains that those specific rules are to The judgment of the Court was delivered after the be found in Paragraph 6(1)(3) in conjunction with indents Finanzgericht Hamburg had made the reference in the 1 and 2 of the EStG, which has specific application thereto present case. See further paragraph 48 below. under Paragraph 5(5) (now Paragraph 5(6)) of the EStG, 27 — See paragraph 30 above. applied by analogy.

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ceedings), the German Government and the criterion for national fiscal purposes; that Commission and at the hearing by the autonomy remains even where in the result German Government and the Commission. that criterion substantially or totally coincides with commercial law principles.

42. The question whether the Court is competent to interpret provisions of national legislation which in effect apply Community legislation to situations to which that Community legislation is not required to be applied as a matter of Community law has been considered most fully in Leur-Bloem and Giloy.

33 —Council Directive 90M.WEKC of 23 July 1990 on the 29 — Cited in note 2. common system of taxation applicable to mergers, divi- 30 — Cited in note 3. sions, transfers of assets, and exchanges of shares concern- mi; companies of different Member States, OJ 1990 L 225, 31 — DE + ES Baunuternehnung, cited in note 26. p. 1 32 — See note 28. 34 — Article 1.

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share mergers should be given the same ECR 1-3763, paragraphs 33 and 34, and in interpretation. It reached that conclusion Case C-231/89 Gmurzynska-Bscher [1990] on the basis of the wording of the respect- ECR 1-4003, paragraphs 18 and 19). ive provisions, which was the same for domestic and intra-Community trans- actions, and their legislative history, in particular a statement in the Explanatory Memorandum of the State Secretary for Finance to the effect that, although Com- munity law did not formally require domestic share mergers to benefit from the same conditions as intra-Community mergers, it was desirable with a view to the achievement of the single market that the Consequently, where questions submitted treatment of the two categories of trans- by national courts concern the interpre- action should be the same. tation of a provision of Community law, the Court is, in principle, obliged to give a ruling (see Dzodzi and Gmurzynska- Bscber, cited above, paragraphs 35 and 20 respectively). Neither the wording of Article 177 nor the aim of the procedure established by that article indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provi- 44. The Court stated as follows: sion where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State (see Dzodzi and Gmurzynska-Bscher, cited above, paragraphs 36 and 25 respect- ively).

rectly, to the circumstances of the case In Kleinwort Benson, the Court observed, referred to the Court (see, to this effect, in paragraph 19, that, unlike the situation Dzodzi and Gmurzynska-Bscher, cited in the Dzodzi line of cases, the provisions above, paragraphs 40 and 23). of the Convention which the Court was asked to interpret had not been rendered applicable as such by the law of the contracting State concerned. In paragraph 16 of its judgment in Kleinwort Benson the Court pointed out that the Act of Parlia- Applying that case-law, the Court has ment in question took the Convention only repeatedly held that it has jurisdiction to as a model and only partially reproduced give preliminary rulings on questions con- its terms. It went on to note, in paragraph cerning Community provisions in situ- 18, that express provision was made in the ations where the facts of the cases being Act for the authorities of the contracting considered by the national courts were State concerned to adopt modifications outside the scope of Community law but "designed to produce divergence" between where those provisions had been rendered provisions of the Act and the corresponding applicable either by domestic law or merely provisions of the Convention. Furthermore, by virtue of terms in a contract (see, as the Act also made an express distinction regards the application of Community law between the provisions applicable to Com- by domestic law, Dzodzi and Gmurzynska- munity situations and those applicable to Bscher, cited above; Case 166/84 Thom- domestic situations. In the first case, in asdünger [1985] ECR 3001; Case C-384/89 interpreting the relevant provisions of the Tomatis and Fulchiron [1991] ECR 1-127 Act, the national courts were bound by the and, as regards the application of Commu- case-law of the Court on the Convention, nity law by the effect of contractual provi- whereas in the second case they had only to sions, Case C-88/91 Federconsorzi [1992] take account of it, so that they could set it ECR 1-4035 and Case C-73/89 Fournier aside. [1992] ECR 1-5621, all those cases being hereinafter referred to as 'the Dzodzi line of cases'). In those cases, the provisions of domestic law and the relevant contractual terms, which incorporated Community provisions, clearly did not limit application However, this is not the situation in the of the latter. present case.

In those circumstances, where in regulating must be that the Court of Justice has internal situations, domestic legislation jurisdiction under Article 177 of the Treaty adopts the same solutions as those adopted to interpret Community law where the in Community law in order, in particular, situation in question is not governed to avoid discrimination against foreign directly by Community law but the nationals or, as in the case before the national legislature, in transposing the national court, any distortion of compe- provisions of a directive into domestic law, tition, it is clearly in the Community inter- has chosen to apply the same treatment to est that, in order to forestall future dif- purely internal situations and to those ferences of interpretation, provisions or governed by the directive, so that it has concepts taken from Community law aligned its domestic legislation to Commu- should be interpreted uniformly, irrespec- nity law.' 3 5 tive of the circumstances in which they are to apply (see, to this effect, the judgment in Dzodzi, cited above, paragraph 37).

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be settled by application of rules of Com- It follows from all the foregoing that the munity law. Court has jurisdiction to rule on the ques- tions submitted to it.' 38

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jurisdiction without questioning their lation at issue to be insuperable obstacles to merits. In DE + ES Bauunternekmung the its assuming jurisdiction: first, the legis- Fifth Chamber did not consider the issue at lation contained no 'direct and uncon- all, simply ruling on the substance. Only in ditional renvoi to provisions of Community Kofisa did the Court explore the question law so as to incorporate them into the whether it had jurisdiction. That case domestic legal order' 40 and, second, it did however was also decided by a chamber not require the national courts to decide (again the Fifth Chamber), which may well disputes before them 'by applying abso- have felt bound by the earlier rulings. The lutely and unconditionally the interpre- judgment moreover largely recites dicta tation' provided by the Court. 41 from Giloy; to the extent that it seeks to grapple with the question, it limits itself to reiterating arguments which had been per- suasively demonstrated by Advocate Gen- eral Ruiz-Jarabo Colomer to be unconvinc- ing, while ignoring altogether the powerful arguments against jurisdiction. Similarly the judgment in Adam makes no reference to the thoughtful and compelling analysis of Advocate General Tizzano, who con- cluded that the Court had no jurisdiction.

were unable to put forward a satisfactory Directive, enacted by the Community legis- explanation of the position of the German lature with a view to mandatory disclosure courts, despite having been expressly asked of accounts by (at the material time) by the Court to focus on that issue at the companies excluding their branches and hearing. That the matter is controversial excluding banks. 43Those provisions are seems corroborated by the recent judgment implemented in Germany in legislation of the Bundesfinanzhof, referred to by the requiring all traders, thus including Commission at the hearing, 42 in which that branches of banks established in another court — against whose decisions no Member State, to prepare and publish appeal lies — took the view that in such accounts in accordance with certain a case it was not obliged to seek a requirements. Those requirements do not preliminary ruling from the Court on the explicitly require the accounts of traders interpretation of the Community legislation other than companies to give a true and fair since it was the application of national law view of their financial position; the Fourth that was at issue. Directive and other German implementing provisions require companies' accounts so to do. German tax legislation requires traders to evaluate their assets for fiscal purposes in accordance with the commer- cial law principles of proper accounting. However, it admits of important exceptions 51. Even however if it is assumed that the to the application of those principles.44 principle laid down in Leur-Bloem and Giloy has the gravitas of consistent case- law, the present case to my mind well illustrates the problems to which that case- law gives rise.

55. Moreover the Finanzamt disputes the guards equivalent throughout the Commu- referring court's view that the reference to nity'. The preamble to the Directive repeats the principles of proper accounting is a the theme of the protection of members and sufficient link with the legislation imple- third parties 46 by mandatory disclosure of menting the Fourth Directive, pointing out comparable information. 47 The Directive that that reference pre-dated the Directive does not seek to regulate the content and by several decades; it appears also from the presentation of national tax returns, and Commission's observations at the hearing legislation governing tax returns may, as I that the Bundesfinanzhof is of the view that shall suggest,48 have very different aims in the present type of case the link with from legislation on accounting for the Community law is not sufficient to justify a purpose of company accounts. reference to this Court. 45 The Finanzamt also states that in its view the Directive does not in any event resolve the substan- tive issue before the national court. Finally, the national tax legislation lays down its own rules for valuing a provision in the accounts for a liability; national case-law 57. It seems to me moreover that similar apparently recognises that in applying difficulties are likely to arise wherever a those rules recourse must be had to the directive is transposed by national law principles of proper accounting; that case- outside its intended context: it will be law however has not been fully explained necessary to examine, for example, to the Court. whether the directive is transposed in its entirety, to scrutinise the national legis- lative context and to consider whether the ruling of the Court of Justice will be binding on national courts as a matter of national law. That exercise will frequently require the Court to take a view on questions of national law which may well be — as in the present case — both com- plex and controversial. 56. The context in which the provisions at issue apply to the dispute which gave rise to the main proceedings is thus manifestly distant ·—· at several removes — from that envisaged by the Fourth Directive. That Directive is based on Article 54(3)(g) of the 58. It is now open to the Court to recon- EC Treaty (now Article 44(2)(g) EC), sider the conclusion it reached in Leur- which — in the context of companies' Bloem and Giloy — or at the very least to rights of establishment — empowers the reconsider the scope of that conclusion — Council and the Commission to coordinate in the light of the present case; the factors 'the safeguards which, for the protection of mentioned above in my view show that the interests of members and others, are such an exercise is necessary. Since the required by Member States of companies or firms... with a view to making such safe- 46 — Recital 1. 47 — Recitals 3, 4, J and 6. 45 — Decision cited in note 42. 48 — See paragraph 60 below.

arguments against the assumption of juris- taxation which might be regarded as for the diction by the Court in this type of case are time being within the competence of the fully set out in my Opinion in Leur-Bloem Member States. and Giloy, and cogently reinforced in the Opinion of Advocate General Ruiz-Jarabo Colomer in Kofisa, 49 I will not reiterate them in this Opinion. I would however note that in my view the present case brings into sharper focus some of the arguments against jurisdiction there set out. In par- ticular I would mention the following points. 60. It is clear from what has been said above that the aims and the material and personal scope of the Fourth Directive are radically different from those of the fiscal legislation at issue in the main proceedings. That difference of context brings me to my second point, namely that the present case perfectly illustrates the principle that apparently identical provisions may have different meanings in different contexts. Company law rules regulating company accounts — now harmonised at Commu- nity level — seek to protect shareholders and third parties (for example, actual and potential creditors and employees) by the mandatory disclosure of prescribed infor- mation. National rules concerning the drawing up of accounts for fiscal purposes 59. First, it is difficult to see how it serves seek on the other hand to enhance and the purpose of Article 234 EC, which protect State revenue. The two contexts are confers jurisdiction on the Court to give thus manifestly different; indeed in several preliminary rulings concerning the validity Member States wholly separate accounts and interpretation of acts of the institutions are drawn up for tax purposes and com- of the Community, for the Court to inter- pany accounts purposes. pret Community provisions in so far as they are taken over by national legislation and applied to a situation manifestly outside the scope of those provisions and hence beyond their intended reach. For the Court to assume such jurisdiction looks dangerously like taking on tasks not imposed by the Treaties, particularly in fields such as direct 61. Third, the referring court will not as a matter of Community law be bound by the 49 — See also the Opinions of Advocate General Tesauro in Klemvort Benson and Advocare General Tizzano in Court's judgment, which will thus inevi- Adam, together with the earlier Opinions of Advocate tably be (again as a matter of Community General Mancini in Case 166/84 Thomasdünger [1985] law) purely advisory. Such a consequence ECR 3001 and Advocate General Darmon in Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763. clearly alters the function of the Court as

63. Fifth, the present case demonstrates that the Community interest may, when invoked as a justification for the assump- tion of jurisdiction by the Court in anal- ogous cases, prove to be a two-edged 65. I thus remain persuaded that the objec- sword. The Court stressed in Leur-Bloem tions to the Court's assuming jurisdiction and Giloy that it was 'clearly in the to interpret provisions of Community legis- Community interest that, in order to fore- lation which apply by virtue of national stall future differences of interpretation, law to persons or situations not within the provisions or concepts taken from Com- scope of the Community legislation in munity law should be interpreted uni- question are compelling. Those objections, formly, irrespective of the circumstances it may be added, seem sufficiently forceful in which they are to apply'. 52In cannot even without considering the further prac- however be in the Community interest for tical difficulties to which the assumption of the Court's jurisdiction in any given case to jurisdiction in such cases would certainly give rise, such as for example the greater difficulty of deciding the issues, the signifi- 50 — See Opinion 1/91 [1991] ECR I-6079, paragraph 61. cant increase in the Court's case-load and 51 — See further paragraph 65 below. the consequential drain on limited judicial 52 — Paragraph 32 of the judgment in Leur-Bloem and para- graph 28 of the judgment in Giloy. resources.

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66. It may additionally be noted that the contain a 'direct and unconditional renvoi objections discussed above are reinforced to provisions of Community law' and by legal scholars: the decisions of the Court require the national courts to decide dis- in Leur-Bloem and Giloy have generally putes before them by applying 'absolutely been critically received by commen- and unconditionally' the interpretation tators. 53 provided to them by the Court. That solution, it may be noted, was the approach preferred by Advocate General Ruiz-Jarabo Colomer in Kofisa. 55

68. If however the Court were not con- vinced of the need to go so far as to reverse those decisions, there is an alternative approach which would in my view, if not resolve, at least mitigate the difficulties 70. It might be thought that there is con- which the earlier rulings entail. That alter- sequently no need to reconsider Leur- native would be for the Court to affirm the Bloem and Giloy but that the present case criteria which it laid down in Kleinwort could rather be distinguished from the Benson 54 (and then passed over in the later earlier ones. In my view however a failure cases), namely that, in order for the Court by the Court unequivocally to resolve the to be able to assume jurisdiction, the issue now will continue to generate uncer- national legislation at issue must both tainty in future cases. Moreover the present case shows — again for the reasons dis- cussed above — that there are good rea- 53 — See for example Anthony Arnull, The European Union and its Court of Justice ( 1999), pp. 53-56; Hjalte Rasmussen, sons to reconsider the earlier rulings. 'Remedying the crumbling EC judicial system', 37 Com- mon Market Law Review 1071, at pp. 1082-3 (2000); G. Tesauro, Diritto Comunitario (2001), pp. 275-7 and Peter Oliver, 'La recevabilité des questions préjudicielles: la jurisprudence des années 1990', [2000] Cahiers de droit 55 — Cited in note 39, paragraphs 38, 50 and 51 of the Opinion. européen 15, at pp. 35-38. See however my objections to the Klennvort Benson approach, set out in my Opinion in Leur-Bloem and Giloy 54 — See paragraphs 16 and 20 of the judgment. at paragraphs 67 to 74.