Opinion of the Advocate General — ECLI:EU:C:2000:516
Date: 2000-09-28
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Member States' option to apply a reduced rate to certain supplies 
of goods and services — Transport of passengers and their accompanying luggage — 
Definition — Making available of road infrastructure on payment of a toll — 
Excluded — Application of a reduced rate to tolls for road infrastructure — Not 
permissible 
(Council Directive 77/388, Art. 12(3)(a) and Annex H, category 5) 
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SUMMARY — CASE C-83/99 
2. Actions for failure to fulfil obligations — Objective nature 
(EC Treaty, Art. 169 (now Art. 226 EC» 
3. Member States — Obligations — Failure to fulfil obligations — Justification — 
Principle of protection of legitimate expectations — Reliance on the principle by a 
Member State to preclude a finding of failure to fulfil obligations — Not permissible 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
1. It follows from Article 12(3)(a) of the 
Sixth Directive 77/388 on the harmo­
nisation of the laws of the Member 
States relating to turnover taxes that 
the application of one or two reduced 
rates of value added tax is an option 
accorded to the Member States as an 
exception to the principle that the 
standard rate applies. Moreover, 
according to that provision, the 
reduced rates may be applied only to 
the supplies of goods and services 
specified in Annex H. 
Consequently, the expression 'trans­
port of passengers and their accompa­
nying luggage' in Annex H, category 5, 
of the Sixth Directive must be inter­
preted strictly, as an exception to the 
principle that the standard rate applies, 
and in accordance with the usual 
meaning of those words. The making 
available of road infrastructure to users 
on payment of a toll does not consist in 
the provision of a means of transport 
but in permitting users who have a 
vehicle to make a journey in better 
conditions. That activity cannot there­
fore be treated as an activity of trans­
port of passengers and their accompa­
nying luggage within the meaning of 
Annex H. 
A Member State which applies a 
reduced rate of value added tax to the 
supply of services consisting in making 
road infrastructure available to users 
on payment of a toll therefore fails to 
fulfil its obligations under Arti­
cle 12(3)(a) of the Sixth Directive. 
(see paras 17-21 and operative part) 
2. The procedure for a declaration of a 
failure on the part of a Member State 
to fulfil an obligation affords a means 
of determining the exact nature of the 
obligations of the Member States in 
case of differences of interpretation and 
is based on the objective finding that a 
Member State has failed to fulfil its 
obligations under the Treaty or sec­
ondary legislation. 
(see para. 23) 
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COMMISSION V SPAIN 
3. The principle of the protection of 
legitimate expectations, which is the 
corollary of the principle of legal 
certainty and is generally relied on by 
individuals (economic operators) in a 
situation where they have legitimate 
expectations created by the public 
authorities, cannot be relied on by a 
Member State, on the ground of the 
length of procedures for failure to fulfil 
obligations initiated by the Commis­
sion against other Member States, to 
preclude an objective finding of a fail­
ure on its part to fulfil its obligations 
under the Treaty or secondary legisla­
tion, since to admit that justification 
would run counter to the aim pursued 
by the procedure under Article 169 of 
the Treaty (now Article 226 EC). 
(see paras 24-25) 
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