Opinion of the Advocate General — ECLI:EU:C:1997:555
Date: 1997-11-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary 
64. In sum, it may be said that the KU I is 
not a levy which exhibits the essential char­
acteristics of VAT. Nor does it jeopardise the 
system of VAT by affecting the movement of 
goods and services. The KU I is therefore 
lawful under Article 33. 
65. The KU I is not intended either to cir­
cumvent VAT or to correct it, nor can it be 
essentially equated with it. Its sole purpose is 
to provide financing by chamber members 
for the lawful representation of their inter­
ests. The amount of input tax paid, which 
was adopted as an indicator of the ability of 
chamber members to make a financial contri­
bution, was perhaps unfortunate but was no 
doubt chosen as the basis of assessment on 
purely practical grounds because that 
amount can readily be ascertained and 
checked from data available elsewhere. 
V — Ancillary examination of the temporal 
effect of the judgment to be given 
66. In the event of the Court deciding not to 
follow that proposal and arriving at the con­
clusion that the KU I is not compatible with 
the system of VAT, the question as to the 
limitation of the effects of the judgment in 
time, raised in the alternative by the Austrian 
Government, must be examined. 
67. It is not for the Court to rule in prin­
ciple on the general validity of the KU I. 
34 — Second, third and fourth recitals in the preamble to the 
Sixth Directive and Opinion of the European Parliament on 
the proposal from the Commission of the European Com­
munities to the Council for a Sixth Directive on the har­
monisation of the legislation of Member States concerning 
turnover taxes — common system of value added tax: Uni­
form basis of assessment (OJ 1974 C 40, p. 34). 
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SPAR v FINANZLANDESDIREKTION FÜR SALZBURG 
That is a matter for the national courts. 
TheCourt's task is merely to examine 
whether the method of calculating the KU I, 
namely by reference to input transactions, is 
compatible with the common system of 
VAT. If that question is answered in the 
negative, it does not mean that the KU I may 
no longer be levied. It would simply be 
necessary to find another method of calcula­
tion which would be compatible with the 
system of VAT. For that reason it would be 
useful to limit the temporal effects of the 
judgment since, as regards the past, there can 
be no question of reimbursements but 
merely of recalculating a Kammerumlage 
whose a m o u n t wou ld no t be significantly 
different. 
68. Furthermore, even if the Court were to 
find there to have been an infringement, it 
would not have been readily discernible 
owing to the complexity of the problem. The 
situation was different in Dansk Denkavit 
and Pouhen Trading, where the Commission 
alerted the Danish Government, only a mat­
ter of weeks after the introduction of the 
duty in question, to the problems to which 
that duty could give rise under Article 33. In 
those circumstances, the Court did not con­
sider it expedient to limit the effects of its 
judgment in time. 35 But since in the present 
case it would not have been so easy to dis­
cern the existence of a possible infringement 
of Article 33, the Court could limit the 
effects of its judgment in time. 
C — Conclusion 
69. Accordingly, I p ropose that the C o u r t should reply as follows to the questions 
referred for a prel iminary ruling: 
Article 33 of the Sixth Counci l Directive (77/388/EEC) of 17 May 1977 on the 
harmonisat ion of the laws of the Member States relating to turnover taxes — C o m ­
m o n system of VAT: uniform basis of assessment, does no t prohibi t a Member State 
from charging a levy assessed at a fixed rate on the basis of: 
(a) the tu rnover tax payable o n supplies or o ther services provided by o ther t rad­
ers to the person subject to the levy for the purposes of his business, w i th the 
exception of that payable on sales of businesses, and 
(b) the tu rnover tax payable b y the person subject to the levy o n impor t s of goods 
for the purposes of his business o r o n purchases effected wi th in the C o m m u ­
ni ty for the purposes of his business. 
Tha t being so, there is n o need to examine Article 17 of the Sixth Directive. 
35 — Judgment cited above in footnote 13, paragraphs 20 to 23. 
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