Opinion of the Advocate General — ECLI:EU:C:2000:43
Date: 2000-01-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Netherlands

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Proof of failure — Burden on Commis­
sion — Provision of information as to national law and practice by the Member State 
concerned — No possibility of pleading lack of specific information 
(EC Treaty, Arts 5 and 169 (now Arts 10 EC and 226 EC)) 
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SUMMARY — CASE C-408/97 
2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Supply of services for consideration — Definition — Provision of 
roads infrastructure on payment of a toll — Whether included 
(Council Directive 77/388, Art. 2, para. 1) 
3. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Taxable persons — Bodies governed by public law — Activities in 
the exercise of public authority not taxable — Definition 
(Council Directive 771388, Art. 4(5)) 
1. While it is incumbent upon the Com­
mission, in proceedings under Arti­
cle 169 of the Treaty (now Article 226 
EC) for failure to fulfil obligations, to 
prove the allegation that the obligation 
has not been fulfilled, a Member State 
cannot plead the lack of specific infor­
mation as to national law and practice 
put forward by the Commission, and, 
therefore, the inadmissibility of the 
action, where the Commission is lar­
gely relying on the information provi­
ded by the Member State concerned, as 
the latter is bound to facilitate the 
achievement of the Commission's 
tasks. 
(see paras 15-17) 
2. The provision of roads infrastructure 
on payment of a toll constitutes a 
supply of services for consideration 
within the meaning of Article 2(1) of 
the Sixth Directive 77/388 on the 
harmonisation of the laws of the 
Member States relating to turnover 
taxes. Use of the road depends on 
payment of a toll, the amount of which 
varies inter alia according to the cate­
gory of vehicle used and the distance 
covered. There is, therefore, a direct 
and necessary link between the service 
provided and the financial considera­
tion received. 
(see paras 29-30) 
3. In order for the exemption from value 
added tax for bodies governed by 
public law, provided for by the first 
subparagraph of Article 4(5) of the 
Sixth Directive 77/388 on the harmo­
nisation of the laws of the Member 
States relating to turnover taxes, to 
apply as regards activities or transac­
tions in which they engage as public 
authorities, two conditions must be 
fulfilled: the activities must be carried 
out by a body governed by public law 
and they must be carried out by that 
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COMMISSION V NETHERLANDS 
body acting as a public authority. As 
regards the latter condition, activities 
pursued as public authorities are those 
engaged in by bodies governed by 
public law under the special legal 
regime applicable to them and do not 
include activities pursued by them 
under the same legal conditions as 
those that apply to private traders. 
(see paras 34-35) 
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