4.

As both parties have admitted — in this respect the Commission accepted the Federal Republic of Germany's view at the hearing — an interpretation of the directive by reference to the German and French language versions thereof does not appear to be the most appropriate way of determining the meaning of the expression ‘public postal services’. It is therefore necessary to refer to the principles which the Court has expounded concerning the approach to be adopted where different language versions use different expressions so that it is not possible to draw with certainty any legal inferences from the terminology used. Quite recently the Court has stated that: ‘in the case of divergence between the language versions the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part’ (Judgment of 28 March 1985 in Case 100/84, Commission v United Kingdom of Great Britain and Northern Ireland, [1985] ECR 1160). The Court therefore has recourse to a schematic and teleologicai interpretation. The preamble to the Sixth Directive is not explicit with regard to the reasons for the exemptions provided for in Article 13. The stated purpose of the directive is the complete financing of the Communities from their own resources. Those resources consist primarily of the resources accruing from value-added tax and are obtained by applying a common rate of tax ‘on a basis of assessment determined in a uniform manner according to Community rules’ (second recital). According to the 11th recital, ‘a common list of exemptions should be drawn up so that the Communities’own resources may be collected in a uniform manner in all the Member States' (emphasis added). The directive's objective is therefore to secure the Communities' own resources by establishing, by means of a uniform basis of assessment, an equal system of contribution for each Member State. It is not possible to take issue with the Federal Republic of Germany when, after referring to that objective, it states that the directive cannot interfere with the power reserved to the Member States to organize their postal system. The directive is not intended to harmonize the laws of the Member States concerning the postal system. Whilst it may constitute an inducement, it does not in any way restrain the Member States' freedom in that area. It must also be pointed out that the drafting of directives involves consultation and discussion, in the course of which each Member State has the opportunity, before the final drafting of the text, to submit its observations and put forward the reservations necessary for each country to preserve its own prerogatives. In that respect the Commission observes that when the Council adopted the directive the German Government must have been aware of the effect the text would necessarily have on its domestic legislation. As I have already stated, the Federal Republic of Germany also maintains that public service should include indirect administration in order to comply with the principle of the equal sharing by the Member States of public burdens. It is true that a Community definition of the term ‘public postal services’ would have the decisive advantage of avoiding the creation of disparities in the field of public burdens. If that expression were interpreted in the same manner throughout the Community, the result would be a uniform basis of assessment for value-added tax and the equal treatment of the Member States. However, it is not clear that the interpretation of Article 13 A (1) (a) is dependent upon a precise definition of the concept of public services. In this case the issue is not whether the postal activities are carried out in the public interest, which is a necessary condition for a public service. It is not disputed that that condition is satisfied in this case; the Community legislator has provided that the supply of goods and services effected in this area is to be classified amongst the activities exempted from tax by virtue of being in the public interest. Rather it must be considered whether the expression ‘public service’, which is capable of two meanings, or is, in the words of Raymond Odent, ‘amphibological’, has an institutional or functional meaning. It has an institutional meaning where it describes an administrative organization. It has a functional meaning where it describes an activity carried on in the public interest. In the Commission's view it must be given an institutional meaning: the draftsman of the Sixth Directive did not list the postal authorities to which Article 13 A (1) (a) applies because they were perfectly well known by all the Member States. It is therefore necessary, in order to ensure that the concept has a Community definition, to restrict it by means of an organic criterion solely to postal institutions governed by public law. That argument, which is based on assertion rather than reasoning, is, of itself, unconvincing. It does not explain why the terms used in Articles 4 (5) and 13 A (1) (a) are different. The principle that public services must be performed by the State, on which the organic criterion relied upon by the Commission is based, does not appear to be immutable. The Court stated in its judgment of 20 March 1985 (Case 41/83 Italian Republic v Commission [1985] (ECR 880) that certain postal institutions governed by public law, in that case British Telecommunications, could undoubtedly be privatized. The organic criterion, linked to the public-law status of the postal authority, does not lend itself to a more precise definition of the concept of public services than the functional criterion used by the Federal Republic of Germany, which admitted that the ‘activity’ of the postal service cannot be defined precisely and therefore relied upon additional formal factors such as the obligations towards the Bundespost imposed by German law on railway and air transport undertakings. It is therefore necessary to avoid restricting oneself to a choice between the organic approach put forward by the Commission and the functional approach adopted by the Federal Republic of Germany and — following the Court's case-law — to seek to resolve the question by means of an interpretation which accords with the wording, scheme and objective of the directive. Article 4 (1) of the directive defines the term ‘taxable person’. A taxable person is any person who carries out an activity specified in the directive. The legal form of the person carrying out the activity is irrelevant. The sole determining factor is the carrying out of the activity. A person carrying out an activity specified in Article 2 is subject to tax; however, the carrying out of one of the activities specified in Articles 13 and 28 is exempt from tax. In particular, Article 13 A (1) (a) covers the supply of all postal services other than passenger transport and telecommunications. Any organization carrying out such an activity is exempt from tax. The legal form of that organization is irrelevant; its form is freely determinable by each Member State by virtue of the fourth subparagraph of Article 4 (5). It is merely necessary for the person claiming exemption to show that he himself performs the function of public postal service. A Community solution may therefore be arrived at not by reference to a definition of public service but rather by reference to the term ‘taxable person’. It follows not only from a literal interpretation of the expression ‘by the public postal services’ used in Article 13 A (1) (a), but also from the general definition of a taxable person contained in Article 4 (1), that that status necessarily arises from carrying out an activity directly. The view that carrying out one of the exempt activities ‘indirectly’ relieves a person of his status as a taxable person is based on an unjustified extension of the scope of the provision and is all the more unjustified inasmuch as Article 13 constitutes a derogation from the principle laid down in Article 2. The discussion concerning the ‘activity’ of the postal service is only of importance if the concept of public service is to be defined on the basis of a functional criterion as distinct from an organic criterion. It becomes irrelevant once it is accepted that, by virtue of the fourth subparagraph of Article 4 (5), it is for the Member States to define and regulate the postal system. Such an interpretation also clarifies the useful effect of Article 13 A (1) (a): the first, second and third subparagraphs of Article 4 (5) relate solely to the activities of bodies governed by public law which they engage in as public authorities. The fourth subparagraph of that provision equates with such activities those which may be engaged in by other bodies. The postal service, which is a public service, may be run by bodies which are not governed by public law. It may be regarded for value-added tax purposes as an activity engaged in by a public authority within the meaning of the first subparagraph of Article 4 (5). The essential point is whether or not the body which is designated by law to run the postal service or a part of that service carries out that activity itself.