Request for a preliminary ruling from the Bundesfinanzhof in the case Wagner-Raith.
In the case of holdings in third-country funds, does the free movement of capital provided for in Article 73b TEC (since 1 May 1999, Article 56 EC) not preclude national legislation (in this instance Paragraph 18(3) of the AuslInvestmG (Law on Foreign Investments)) which provides that, in certain circumstances, national investors in foreign investment funds are deemed to have received, in addition to distributions, notional earnings in the amount of 90% of the difference between the first and the last redemption price of the year, but of at least 10% of the final redemption price (or of the stock exchange or market value), because that legislation, which has remained essentially unchanged since 31 December 1993, is concerned with the provision of financial services within the meaning of the rule on the protection of established rights contained in Article 73c(1) TEC (since 1 May 1999, Article 57(1) EC)? If the answer to Question 1 is in the negative: Does the holding in such an investment fund established in a third country always constitute a direct investment within the meaning of Article 73c(1) TEC (since 1 May 1999, Article 57(1) EC) or is the answer to this question dependent on whether, under the national law of the State in which the investment fund is established or on other grounds, the holding allows the investor to be actually involved in the management or control of the investment fund?
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