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JUDGMENT OF THE COURT
12 September 2000 (1)
(Failure to fulfil obligations - Article 4(5) of the Sixth VAT Directive - Access to roads on payment of a toll - Failure to levy VAT)
In Case C-408/97,
Commission of the European Communities, represented initially by H. Michard and B.J. Drijber, of its Legal Service, and subsequently by H. Michard and H. van Vliet, also of that service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, also of that service, Wagner Centre, Kirchberg,
applicant,
v
Kingdom of the Netherlands, represented by C. Wissels and M.A. Fierstra, Deputy Legal Advisers in the Ministry of Foreign Affairs, acting as Agents, Bezuidenhoutseweg 67, The Hague,
defendant,
APPLICATION for a declaration that, by failing to subject to value added tax tolls collected for the use of roads as consideration for the service supplied to users, contrary to Articles 2 and 4 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, J.C. Moitinho de Almeida (Rapporteur), L. Sevón and R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann, J.-P. Puissochet, P. Jann, H. Ragnemalm, V. Skouris and F. Macken, Judges,
Advocate General: S. Alber,
Registrar: D. Louterman-Hubeau and H.A. Rühl, Principal Administrators,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 23 November 1999,
after hearing the Opinion of the Advocate General at the sitting on 27 January 2000,
gives the following
Legal background
'The following shall be subject to value added tax:
1. the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such;
2. the importation of goods.
'1. Taxable person shall mean any person who independently carries out in any place any economic activity specified in paragraph (2), whatever the purpose or results of that activity.
2. The economic activities referred to in paragraph (1) shall comprise all activities of producers, traders and persons supplying services including mining and agricultural activities and activities of the professions. The exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis shall also be considered an economic activity.
...
5. States, regional and local government authorities and other bodies governed by public law shall not be considered taxable persons in respect of the activities or transactions in which they engage as public authorities, even where they collect dues, fees, contributions or payments in connection with these activities or transactions.
However, when they engage in such activities or transactions, they shall be considered taxable persons in respect of these activities or transactions where treatment as non-taxable persons would lead to significant distortions of competition.
In any case, these bodies shall be considered taxable persons in relation to the activities listed in Annex D, provided they are not carried out on such a small scale as to be negligible.
Member States may consider activities of these bodies which are exempt under Article 13 or 28 as activities which they engage in as public authorities.
Pre-litigation procedure
Admissibility
Substance
Costs
43. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Kingdom of the Netherlands has applied for an order for costs against the Commission and the latter has been unsuccessful, the Commission must be ordered to bear the costs.
On those grounds,
THE COURT
hereby:
1. Dismisses the application;
2. Orders the Commission of the European Communities to bear the costs.
Rodríguez Iglesias Moitinho de AlmeidaSevón
Schintgen Kapteyn GulmannPuissochet
Jann RagnemalmSkouris Macken
|
Delivered in open court in Luxembourg on 12 September 2000.
R. Grass G.C. Rodríguez Iglesias
Registrar President
1: Language of the case: Dutch.