# C_2009129EN.01000501.xml

| 6.6.2009 | EN | Official Journal of the European Union | C 129/5 |
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6.6.2009

EN

Official Journal of the European Union

C 129/5

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Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Vienna (Austria) lodged on 10 March 2009 — Ingrid Schmelz v Finanzamt Waldviertel,

(Case C-97/09)

2009/C 129/08

Language of the case: German

Referring court

Referring court

Unabhängiger Finanzsenat, Außenstelle Vienna

Parties to the main proceedings

Parties to the main proceedings

Applicant: Ingrid Schmelz

Applicant:

Defendant: Finanzamt Waldviertel

Defendant:

Questions referred

Questions referred

| 1. | Does the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, in the version of No 21 of Council Directive 92/111/EEC of 14 December 1992 (2) amending Directive 77/388/EEC and introducing simplification measures with regard to value added tax, and a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment) because the provision has the effect that Union citizens who are not established in the territory of the relevant country are excluded from the exemption under Article 24(2) of the Sixth Directive (Special scheme for small undertakings), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small undertakings in accordance with the Directive? |
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1.

Does the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, in the version of No 21 of Council Directive 92/111/EEC of 14 December 1992 (2) amending Directive 77/388/EEC and introducing simplification measures with regard to value added tax, and a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment) because the provision has the effect that Union citizens who are not established in the territory of the relevant country are excluded from the exemption under Article 24(2) of the Sixth Directive (Special scheme for small undertakings), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small undertakings in accordance with the Directive?

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| 2. | Does the wording ‘supplies of goods or services carried out by a taxable person who is not established in the Member State in which the VAT is due’ in Article 283(1)(c) of Council Directive 2006/112/EC of 28 November 2006 (3) on the common system of value added tax and that of a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment), because the provision has the effect that Union citizens who are not established in the relevant Member State are excluded from the exemption under Article 282 et seq. of Directive 2006/112/EC (Special scheme for small enterprises), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small enterprises in accordance with the Directive? |
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2.

Does the wording ‘supplies of goods or services carried out by a taxable person who is not established in the Member State in which the VAT is due’ in Article 283(1)(c) of Council Directive 2006/112/EC of 28 November 2006 (3) on the common system of value added tax and that of a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment), because the provision has the effect that Union citizens who are not established in the relevant Member State are excluded from the exemption under Article 282 et seq. of Directive 2006/112/EC (Special scheme for small enterprises), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small enterprises in accordance with the Directive?

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| 3. | If the answer to the first question is in the affirmative: is the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Directive invalid within the meaning of Article 234(b) EC? |
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3.

If the answer to the first question is in the affirmative: is the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Directive invalid within the meaning of Article 234(b) EC?

| 4. | If the answer to the second question is in the affirmative: is the wording ‘supplies of goods or services carried out by a taxable person who is not established in the Member State in which the VAT is due’ in Article 283(1)(c) of Directive 2006/112/EC invalid within the meaning of Article 234(b) EC? |
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4.

If the answer to the second question is in the affirmative: is the wording ‘supplies of goods or services carried out by a taxable person who is not established in the Member State in which the VAT is due’ in Article 283(1)(c) of Directive 2006/112/EC invalid within the meaning of Article 234(b) EC?

| 5. | If the answer to the third question is in the affirmative: should ‘turnover’ within the meaning of Annex XV of the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Kingdom of Norway, the Republic of Austria, the Republic of Finland, the Kingdom of Sweden, concerning the accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union together with the Final Act (The Treaty of Accession), IX. Taxation, (4) (2)(c) and of Article 24 of the Sixth Directive respectively be understood to mean the turnover generated in one year in the particular Member State for which the small undertakings scheme is utilised or the undertaking’s turnover generated in one year throughout the Community? |
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5.

If the answer to the third question is in the affirmative: should ‘turnover’ within the meaning of Annex XV of the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Kingdom of Norway, the Republic of Austria, the Republic of Finland, the Kingdom of Sweden, concerning the accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union together with the Final Act (The Treaty of Accession), IX. Taxation, (4) (2)(c) and of Article 24 of the Sixth Directive respectively be understood to mean the turnover generated in one year in the particular Member State for which the small undertakings scheme is utilised or the undertaking’s turnover generated in one year throughout the Community?

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| 6. | If the answer to the fourth question is in the affirmative: Should ‘annual turnover’ within the meaning of Article 287 of Directive 2006/112/EC be understood to mean the turnover generated in one year in the particular Member State for which the small undertakings scheme is utilised or the undertaking’s turnover generated in one year throughout the Community? |
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6.

If the answer to the fourth question is in the affirmative: Should ‘annual turnover’ within the meaning of Article 287 of Directive 2006/112/EC be understood to mean the turnover generated in one year in the particular Member State for which the small undertakings scheme is utilised or the undertaking’s turnover generated in one year throughout the Community?

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(1)  OJ L 145, p. 1.

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(2)  OJ L 383, p. 47.

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(3)  OJ L 347, p. 1.

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(4)  OJ 1994 C 241, p. 335.

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