Opinion of the Advocate General — ECLI:EU:C:2001:699
Date: 2001-12-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Pre-litigation procedure — Subject-
matter — Reasoned opinion — Content — Delimitation of the subject-matter of 
the action 
(Art. 226 EC) 
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SUMMARY — CASE C-287/00 
2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Exemptions provided for by the Sixth Directive — Exemption for 
the supply of services closely related to university education — Research activities in 
State universities carried out for consideration — Excluded 
(Council Directive 77/388, Articles 2 and 13(A)(1)(i)) 
1. In infringement proceedings, the pur­
pose of the pre-litigation procedure is 
to give the Member State concerned an 
opportunity, on the one hand, to 
comply with its obligations under 
Community law and, on the other, to 
avail itself of its right to defend itself 
against the complaints made by the 
Commission. 
The proper conduct of that procedure 
constitutes an essential guarantee 
required by the Treaty not only in 
order to protect the rights of the 
Member State concerned, but also so 
as to ensure that any contentious 
procedure will have a clearly defined 
dispute as its subject-matter. 
Accordingly, the subject-matter of the 
proceedings under Article 226 EC is 
delimited by the pre-litigation pro­
cedure governed by that provision. 
Therefore, the application must be 
based on the same grounds and pleas 
as the reasoned opinion which must 
contain a cogent and detailed exposi­
tion of the reasons which led the 
Commission to the conclusion that 
the Member State concerned had failed 
to fulfil one of its obligations under the 
Treaty. 
By invoking for the first time in the 
application an argument in response to 
a ground of defence raised also for the 
first time by the defendant Member 
State in response to the reasoned 
opinion, the Commission does not 
amend either the definition or the basis 
of the alleged infringement. 
(see paras 16-19, 24) 
2. National legislation exempting trans­
actions from value added tax, which is 
neither covered by an exemption laid 
down in the Sixth Directive 77/388 on 
the harmonisation of the laws of the 
Member States relating to turnover 
taxes, nor authorised in accordance 
with an exception provided for by that 
directive, constitutes an infringement 
of Article 2 thereof. Therefore a 
Member State which exempts from 
value added tax the research activities 
carried out for consideration by public-
sector high-education establishments 
fails to fulfil its obligations under 
Article 2 of the Sixth Directive. 
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COMMISSION v GERMANY 
Those activities cannot be regarded as 
a supply of services closely related to 
university education for the purposes 
of Article 13(A)(1)(i) of the Sixth 
Directive. 
Although that concept does not require 
an especially strict interpretation, since 
the exemption of that supply of services 
is designed to ensure that access to the 
benefits of such education is not hin­
dered by the increased costs of provid­
ing it that would follow if it, or the 
supply of services and of goods closely 
related to it, were subject to value 
added tax the fact of subjecting 
research projects carried out by State 
universities for consideration to value 
added tax does not have the effect of 
increasing the cost of university edu­
cation. 
Moreover, although the undertaking of 
such projects may be regarded as of 
great assistance to university edu­
cation, it is not essential to achieve its 
purpose. 
(see paras 40, 47-49, 52, 
operative part) 
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