61981CJ0255_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 255/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE CASE PENDING BEFORE THAT COURT BETWEEN
R . A . GRENDEL GMBH, REPRESENTED BY ITS MANAGER, RENATE GRENDEL, RESIDING IN HAMBURG,
V
FINANZAMT FUR KORPERSCHAFTEN IN HAMBURG ( TAX OFFICE FOR CORPORATIONS IN HAMBURG ), HAMBURG,
Subject of the case
ON THE INTERPRETATION OF ARTICLE 13 B ( D ) 1 . OF THE SIXTH COUNCIL DIRECTIVE 77/388 OF 17 MAY 1977 ON THE HARMONIZATION OF THE LAWS OF THE MEMBER STATES RELATING TO TURNOVER TAXES - COMMON SYSTEM OF VALUE-ADDED TAX : UNIFORM BASIS OF ASSESSMENT,
Grounds
1 BY ORDER OF 4 SEPTEMBER 1981, WHICH WAS RECEIVED AT THE COURT ON 18 SEPTEMBER 1981, THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 13 B ( D ) 1 . OF THE SIXTH COUNCIL DIRECTIVE 77/388/EEC OF 17 MAY 1977 ON THE HARMONIZATION OF THE LAWS OF THE MEMBER STATES RELATING TO TURNOVER TAXES - COMMON SYSTEM OF VALUE-ADDED TAX : UNIFORM BASIS OF ASSESSMENT ( OFFICIAL JOURNAL 1977, L 145, P . 1 ).
2 ACCORDING TO ARTICLE 1 OF THE DIRECTIVE THE MEMBER STATES HAS TO ADOPT THE NECESSARY LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS BY 1 JANUARY 1978 AT THE LATEST . SINCE SEVERAL MEMBER STATES INCLUDING THE FEDERAL REPUBLIC OF GERMANY WERE NOT IN A POSITION TO MAKE, IN GOOD TIME, THE NECESSARY ADAPTATIONS TO THEIR SYSTEM OF VALUE-ADDED TAX, THE COUNCIL, BY THE NINTH COUNCIL DIRECTIVE 77/583 OF 26 JUNE 1978 ON THE HARMONIZATION OF THE LAWS OF THE MEMBER STATES RELATING TO TURNOVER TAXES, EXTENDED THE SAID PERIOD UNTIL 1 JANUARY 1979 .
3 IT WAS NOT UNTIL THE ADOPTION OF THE LAW OF 26 NOVEMBER 1979 ( BUNDESGESETZBLATT I, P . 1953 ), WHICH TOOK EFFECT ON 1 JANUARY 1980, THAT THE FEDERAL REPUBLIC OF GERMANY IMPLEMENTED THE SIXTH DIRECTIVE .
4 IT IS APPARENT FROM THE ORDER MAKING THE REFERENCE THAT THE UNDERTAKING GRENDEL, WHICH CARRIES ON BUSINESS IN GERMANY AS A CREDIT NEGOTIATOR, WAS BY NOTICE OF ASSESSMENT OF 3 SEPTEMBER 1980 ISSUED BY THE FINANZAMT FUR KORPERSCHAFTEN ( TAX OFFICE FOR CORPORATIONS ) IN HAMBURG, ASSESSED TO TURNOVER TAX ON THE INCOME RECEIVED IN 1979 BY WAY OF COMMISSION FOR THAT ACTIVITY, IN ACCORDANCE WITH THE GERMAN LAW IN FORCE UNTIL 31 DECEMBER 1979 .
5 THE UNDERTAKING OBJECTED AND CLAIMED EXEMPTION FORM THE TAX, RELYING ON ARTICLE 13 OF THE SIXTH COUNCIL DIRECTIVE WHICH, IT ALLEGED, WAS DIRECTLY APPLICABLE . ARTICLE 13 B ( D ) 1 . THEREOF PROVIDES THAT ' ' THE GRANTING AND THE NEGOTIATION OF CREDIT ' '
AND ' ' THE MANAGEMENT OF CREDIT BY THE PERSON GRANTING IT ' '
ARE TO BE EXEMPT FROM TAX . THE FINANZAMT TOOK THE VIEW THAT THE DIRECTIVE DID NOT CREATE A RIGHT CAPABLE OF BEING ASSERTED DIRECTLY BY AN INDIVIDUAL AND REFUSED TO GRANT THE EXEMPTION .
6 THE FINANZGERICHT HAMBURG BEFORE WHICH THE MATTER WAS BROUGHT STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' ' IS ARTICLE 13 B ( D ) 1 . OF THE SIXTH COUNCIL DIRECTIVE OF 17 MAY 1977 ( 77/388/EEC ) TO BE INTERPRETED AS CONFERRING ON A TAXABLE PERSON, AS FROM THE DATE ON WHICH IT TOOK EFFECT, A DIRECT LEGAL RIGHT TO EXEMPTION FROM TAX IN RESPECT OF THE TRANSACTIONS REFERRED TO THEREIN, EVEN WHERE EXEMPTION IS ( NOT YET ) PROVIDED FOR UNDER NATIONAL LAW ON TURNOVER TAX?
' '
7 THE PLAINTIFF IN THE MAIN ACTION DID NOT APPEAR IN THE PROCEEDINGS BEFORE THE COURT . ITS VIEW WAS SUPPORTED BY THE COMMISSION WHICH ARGUED BEFORE THE COURT TO THE EFFECT THAT INDIVIDUALS ARE ENTITLED TO CLAIM THE RELEVANT EXEMPTION FROM TAX . THE COUNCIL TOO, WHICH TOOK PART IN THE ORAL PROCEDURE, SUPPORTED THE PLAINTIFF ' S VIEW, ALBEIT WITH CERTAIN RESERVATIONS .
8 ON THE OTHER HAND THE FINANZAMT, SUPPORTED BY THE GOVERNMENTS OF THE FRENCH AND ITALIAN REPUBLICS EXPOUNDED A NUMBER OF ARGUMENTS DESIGNED TO SHOW THAT FOR THE PERIOD, NAMELY THE TAX YEAR 1979, DURING WHICH THE NATIONAL LEGAL PROVISIONS IMPLEMENTING THE DIRECTIVE IN THE FEDERAL REPUBLIC OF GERMANY HAD NOT YET ENTERED INTO FORCE, IT WAS NOT POSSIBLE TO RELY ON THE PROVISION IN QUESTION .
9 IT MUST BE POINTED OUT THAT THE QUESTIONS RAISED IN THIS CASE HAVE ALREADY BEEN RESOLVED BY THE COURT IN ITS JUDGMENT OF 19 JANUARY 1982 IN CASE 8/81 BECKER ( 1982 ) ECR, WHICH WAS CONCERNED WITH THE SAME ISSUE .
10 THE FRENCH GOVERNMENT AND THE COMMISSION HAVE CONFINED THEMSELVES TO REPEATING THEIR OBSERVATIONS IN CASE 8/81 . THE PARTIES WHO WERE NOT INVOLVED IN CASE 8/81, NAMELY THE ITALIAN GOVERNMENT AND THE DEFENDANT IN THE MAIN ACTION, HAVE NOT PUT FORWARD IN THEIR PLEADINGS NEW ARGUMENTS WHICH WERE NOT CONSIDERED IN THE ABOVE-MENTIONED JUDGMENT .
11 IN THOSE CIRCUMSTANCES IT IS NECESSARY TO REFER TO THE COURT ' S RULING IN ITS JUDGMENT OF 19 JANUARY 1982, NAMELY THAT AS FROM 1 JANUARY 1979 IT WAS POSSIBLE FOR THE PROVISION CONCERNING THE EXEMPTION FROM TURNOVER TAX OF TRANSACTIONS CONSISTING OF THE NEGOTIATION OF CREDIT CONTAINED IN ARTICLE 13 OF DIRECTIVE 77/388 TO BE RELIED UPON, IN THE ABSENCE OF THE IMPLEMENTATION OF THAT DIRECTIVE, BY A CREDIT NEGOTIATOR WHERE HE HAD REFRAINED FROM PASSING THAT TAX ON TO PERSONS FOLLOWING HIM IN THE CHAIN OF SUPPLY, AND THAT THE STATE COULD NOT CLAIM, AS AGAINST HIM, THAT IT HAD FAILED TO IMPLEMENT THE DIRECTIVE .
12 THE JUDGMENT OF THE COURT OF 19 JANUARY 1982 IN CASE 8/81 BECKER IS TO BE ANNEXED TO THE PRESENT JUDGMENT BY WAY OF SUPPLEMENT .
Decision on costs
COSTS
13 THE COSTS INCURRED BY THE GOVERNMENT OF THE FRENCH REPUBLIC, THE GOVERNMENT OF THE ITALIAN REPUBLIC, THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 4 SEPTEMBER 1981, HEREBY RULES :
AS FROM 1 JANUARY 1979 IT WAS POSSIBLE FOR THE PROVISION CONCERNING THE EXEMPTION FROM TURNOVER TAX OF TRANSACTIONS CONSISTING OF THE NEGOTIATION OF CREDIT CONTAINED IN ARTICLE 13 B ( D ) 1 . OF THE SIXTH DIRECTIVE 77/388 OF 17 MAY 1977 ON THE HARMONIZATION OF THE LAWS OF THE MEMBER STATES RELATING TO TURNOVER TAXES - COMMON SYSTEM OF VALUE-ADDED TAX : UNIFORM BASIS OF ASSESSMENT - TO BE RELIED UPON, IN THE ABSENCE OF THE IMPLEMENTATION OF THAT DIRECTIVE, BY A CREDIT NEGOTIATOR WHERE HE HAD REFRAINED FROM PASSING THAT TAX ON TO PERSONS FOLLOWING HIM IN THE CHAIN OF SUPPLY, AND THE STATE COULD NOT CLAIM, AS AGAINST HIM, THAT IT HAD FAILED TO IMPLEMENT THE DIRECTIVE .