Opinion of the Advocate General — ECLI:EU:C:1998:376
Date: 1998-07-16
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary, I can see nothing either in the combined terms of Article 28 and point 16 of Annex F or in the scheme and purpose of the Sixth Directive to preclude a Member State from making changes to the terms of an existing exemption with the sole effect of reducing its material scope. Member States should not be discouraged from proceeding by stages to the elimination of transitionally authorised VAT exemptions. In any event, any ambiguities arising in national rules adopted after 1977 in respect of the transitional exemptions should, in my opinion, be resolved by national courts in accordance with the principle that any reduction in the scope of a pre-existing exemption be interpreted broadly; such rules are, after all, akin in effect to an exception from one of the mandatory exemptions provided for in Title X of the Sixth Directive. IV — Conclusion 33. Accordingly, I recommend that the Court answer the question referred by the VAT and Duties Tribunal, Manchester as follows: In relation to the supply of land which has been held to be building land, a Member State is entitled to exempt the supply under Article 28(3)(b) of, read in conjunction with point 16 of Annex F to, the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, notwithstanding that it has, first, since the adoption of the Sixth Directive introduced an election to waive the VAT exemption in respect of such supplies and, secondly, reduced the material scope of the exemption which it applies in respect of such supplies so that some previously exempt supplies are now subject to VAT. 1: Original language: English. 2: — Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment; OJ 1977 L 145, p. 1 (hereinafter 'the Sixth Directive‘). 3: — Eighteenth Council Directive 89/465/EEC of 18 July 1989 on the harmonisation of the laws of the Member States relating to turnover taxes — Abolition of certain derogations provided for in Article 28(3) of the Sixth Directive, 77/388/EEC; OJ 1989 L 226, p. 21. Various transitional exemptions originally authorised by Annex F were abolished by Article 1(2) of the Eighteenth Directive. 4: — Case C-468/93 Gemeente Emmen v Belastingsdienst Grote Ondernemingen [1996] ECR I-1721 (hereinafter 'Gemeente Emmen‘). 5: — Ibid., paragraph 20. 6: — Gemeente Emmen, paragraph 25. 7: — Ibid., paragraph 26 and the dispositive part of the judgment. 8: — The Commission cites, in this respect, Case 70/83 Kloppenburg v Finanzamt Leer [1984] ECR 1075. 9: — Case C-74/91 [1992] ECR I-5437. 10: — Case 73/85 Kerrutt v Finanzamt Mönchengladbach-Mitte [1986] ECR 2219 (hereinafter 'Kerrutt‘). 11: — Paragraph 27. 12: — Loc. cit., footnote 9 above. 13: — Paragraph 4 of his Opinion. 14: — Paragraph 17. 15: — Ibid. 16: — Loc. cit., footnote 8 above. 17: — The Court then concludes in the first sentence of paragraph 17 that, since Germany had not denied that it had not maintained a general scheme for travel agents, and since it had also actually adopted a special scheme pursuant to Article 26 of the Sixth Directive, it could not 'rely on the possibility of continuing to exempt certain activities for which exemption is not envisaged by that article‘. 18: — Commission v Germany, paragraph 21 of the Opinion. 19: — This is borne out by the second sentence of paragraph 17, where the Court states that 'to allow the maintenance of partial exemptions not expressly provided for by the transitional provisions of the Sixth Directive applicable to travel agents would run counter to the principle of legal certainty ...‘ (emphasis added).