Judgment — ECLI:EU:C:2008:337
Date: 2008-06-12
Language of the case: Portuguese
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation
Concepts: National derogations;Res judicata;Rates
Procedure: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 1. Procedure – Res judicata – Scope – Inadmissibility of a second appeal – Conditions – Same subject-matter 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Option for Member States to apply a reduced rate on a transitional basis (Council Directive 77/388, Arts 12 and 28) 1. In the context of infringement proceedings against a Member State, that State cannot validly plead res judicata in the light of an earlier judgment where the subject-matter of case in question and that of the earlier case are different, precisely on account of the information which that Member State supplied to the Commission in the context of the case in question. (see para. 27) 2. A Member State fails to fulfil its obligations under Articles 12 and 28 of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes if it maintains in force a reduced rate of value added tax of 5% applicable to road tolls for a crossing operated by an independent third party, where that State had applied the standard rate of value added tax to the services at issue between 1992 and 1994. The reduced rate that may be applied cannot be lower than 12% under Article 28(2)(e) of that directive. Moreover, a Member State which has complied, as regards services other than those specified in Annex H to the Sixth Directive, with the harmonised provisions of that directive, cannot exempt itself from its obligations by relying on Article 28(2)(e) thereof, since the objective of that provision is precisely the opposite, namely the gradual harmonisation of national provisions to align them with those of the Sixth Directive, and, accordingly, it cannot be authorised to reintroduce a reduced rate in respect of those services. (see paras 49, 55-56, 59, operative part)