Opinion of the Advocate General — ECLI:EU:C:1997:250
Date: 1997-05-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Provisions governing the Institutions;Value added tax
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgmen t 
1. Aas of the institutions — Directives — Possibility for a natural or legal person to challenge 
before a national court the validity of provisions in directives without having brought an 
action for annulment of those provisions — Provisions addressed in general terms to Member 
States and not directly applicable — Right of a natural or legal person to raise the question 
before the national court 
(EC Treaty, Art. 173; Council Directives 77/388, Art. 28k, inserted by Directive 91/680, Art. 
1(22), and 92/12, Art. 28) 
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SUMMARY — CASE C-408/95 
2. Aas of the institutions — Procedure by which they are drawn up — Due consultation of the 
Parlament — Essential procedural requirement — Fresh consultation where the Commis­
sion's original proposal has been substantially amended — Substantial amendment — Criteria 
— Amendment corresponding to the wishes of the Parliament — Criteria 
(Council Directives 77/388, Art. 28k, inserted by Directive 91/680, Art. 1(22), and 92/12, 
Art. 28) 
1. A natural or legal person may challenge 
before a national court the validity of 
provisions in directives, such as Article 
1(22) of Directive 91/680 supplementing 
the common system of value added tax 
and amending Directive 77/388 with a 
view to the abolition of fiscal frontiers 
and Article 28 of Directive 92/12 on the 
general arrangements for products subject 
to excise duty and on the holding, move­
ment and monitoring of such products, 
even though that person has not brought 
an action for annulment of those provi­
sions pursuant to Article 173 of the 
Treaty and even though a court of 
another Member State has already given 
judgment in separate proceedings. 
With respect to the validity of provisions 
in Community directives which are 
addressed in general terms to Member 
States and not to natural or legal persons, 
and which are not directly applicable to 
the operators concerned, it is not obvious 
that an action challenging those provi­
sions under Article 173 of the Treaty 
would have been admissible. As regards 
the decision of a court of another Mem­
ber State, it is not for the Court of 
Justice, in the procedure provided for in 
Article 177 of the Treaty, to assess the 
need for a preliminary ruling by reference 
to the judgment on a similar question 
given in separate proceedings by a court 
of another Member State. 
2. The requirement to consult the Parlia­
ment in the legislative procedure, in the 
cases provided for by the Treaty, means 
that it must be consulted again whenever 
the text finally adopted, taken as a whole, 
differs in essence from the text on which 
the Parliament has already been con­
sulted, except in cases in which the 
amendments substantially correspond to 
the wishes of the Parliament itself. 
With respect to the proposals for Direc­
tives 91/680 and 92/12, the purpose of 
which was to adjust the systems of value 
added tax and excise duty to the existence 
of an internal market, it was not neces­
sary for the Parliament to be consulted 
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EUROTUNNEL AND OTHERS y SEAFRANCE 
again on Articles 1(22) of Directive 
91/680 and 28 of Directive 92/12. 
The object of those provisions, which 
authorize Member States to exempt sup­
plies of tax-free shops within certain lim­
its for a period ending on 30 June 1999, is 
to permit a pre-existing system to be 
maintained if the Member States so wish, 
and they must be interpreted as optional 
exceptions of limited scope to Directives 
91/680 and 92/12, and thus cannot be 
classed as changes in the essence of the 
measures. 
Moreover, by deciding to maintain the 
option for Member States to exempt tax-
free sales for a transitional period, the 
Council responded in substance to the 
wishes of the Parliament, which not only 
had an opportunity to express its opinion 
on the question of tax-free sales but rec­
ommended that they should be main­
tained, in that in its opinion on Directive 
91/680 it had proposed amendments 
which were entirely compatible with the 
tenor of the final text of the directive, and 
in its opinion on Directive 92/12 it pro­
posed that the derogating arrangements in 
force for sales free of excise duty should 
temporarily be maintained until 31 
December 1995. 
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