Opinion of the Advocate General — ECLI:EU:C:2007:103
Date: 2007-02-15
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Taxation;General Agreement on Tariffs and Trade (GATT);Commercial policy;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Refund of the tax to taxable persons not established in the territory of the Community (Council Directive 86/560, Art. 2(2)) Article 2(2) of the Thirteenth Council Directive 86/560 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in Community territory, pursuant to which Member States may make refund of the tax conditional upon the granting by third States of comparable advantages regarding turnover taxes, must be interpreted as meaning that the ‘third States’ referred to in that provision include all third States and that that provision is without prejudice to the ability and the responsibility of the Member States to comply with their obligations under international agreements such as the General Agreement on Trade in Services. Article 2(2) of the Thirteenth Directive, in common with all the other provisions of that directive, clearly refers to all third States without any distinction. Moreover, in so far as that provision leaves each Member State free to decide in respect of each third State whether or not it would be appropriate to impose a condition of reciprocity, it enables Member States, to the extent to which they enter into agreements with certain third States which limit that discretion, to adapt their legislation so as to reflect those agreements. In those circumstances, the obligation to interpret secondary Community law, in so far as is possible, in conformity with international agreements concluded by the Community, does not require the expression ‘third States’ appearing in that provision to be interpreted restrictively so as to apply only to third States which cannot invoke the most-favoured-nation clause contained in Article II(1) of the General Agreement on Trade in Services. (see paras 15, 18-21, operative part)