Case C‑599/12

Jetair NV

and

BTW-eenheid BTWE Travel4you

v

FOD Financiën

(Request for a preliminary ruling from the rechtbank van eerste aanleg te Brugge)

‛VAT — Special scheme for travel agents — Transactions carried out outside the European Union — Sixth Council Directive 77/388/EEC — Article 28(3) — Directive 2006/112/EC — Article 370 — ‘Standstill’ clauses — Amendment of national legislation during the transposition period’

Summary — Judgment of the Court (Eighth Chamber), 13 March 2014

Harmonisation of fiscal legislation — Common system of value added tax — Special scheme for travel agencies — National legislation treating travel agents differently from intermediaries — Taxation only of the services of travel agents with regard to journeys outside the European Union — Lawfulness

Harmonisation of fiscal legislation — Common system of value added tax — Option for Member States to retain certain tax measures on a transitional basis — Scope — Taxation of the supply of the services of travel agents in relation to journeys outside the European Union — Infringement of EU law — No such infringement

Harmonisation of fiscal legislation — Common system of value added tax — Special scheme for travel agencies — Supply of the services of travel agents with regard to journeys outside the European Union — National legislation that does not treat those services as exempt intermediary activities — Lawfulness

Harmonisation of fiscal legislation — Common system of value added tax — Option for Member States to retain certain tax measures on a transitional basis — Obligations of Member States during the period for transposition — Obligation not to adopt measures that could compromise the attainment of the result prescribed by the Directive — Taxation of the supply of the services of travel agents in relation to journeys outside the European Union — Lawfulness

Article 28(3) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes and Article 370 of Directive 2006/112 on the common system of value added tax do not preclude the introduction by a Member State before 1 January 1978, during the transposition period of Sixth Directive, of a provision that amends its existing legislation by imposing VAT on the transactions of travel agents relating to journeys outside the European Union. It is true that, during the period prescribed for transposition, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive. However, it follows from the wording of Article 28(3) and (4) of the Sixth Directive, read in conjunction with Article 15 of and Annex E to that directive, that the EU legislature has granted the right to derogate from the obligation to exempt the services referred to in Article 26(3) of that directive to Member States whose laws provided for the taxation of those services before 1 January 1978. Accordingly, if Member States taxed those services on 1 January 1978, they could continue to do so after that date. As the Sixth Directive expressly set that date as the starting point for the possible retention of a tax measure, a law providing for taxation of those services adopted before that date, during the period for transposition of that directive, cannot be considered as being liable seriously to compromise the attainment of the result prescribed by that directive. (see paras 31, 35, 37, 38, operative part 1)

A Member State is not in breach of Article 309 of Directive 2006/112 on the common system of value added tax by not treating the services of travel agents as exempt intermediary activities where those services relate to journeys made outside of the European Union and by imposing VAT on those services, if it imposed value added tax on those services on 1 January 1978. Article 370 of that directive allows an exception to Article 309 by granting Member States the option of taxing those services if they were taxed on 1 January 1978. Where a Member State fulfils that condition, it is not obliged to apply the provisions of Article 309 of that directive. (see paras 41-43, operative part 2)

Article 370 of Directive 2006/112 on the common system of value added tax, read in conjunction with point 4 of Part A of Annex X of that directive, does not infringe EU law by granting Member States the option to continue to tax the supply of the services of travel agents in relation to journeys outside the European Union. It is true that, in granting such an option to Member States, that article introduces a system that differs between Member States that make use of it by taxing those services and those that apply the rules laid down in Article 309 of that directive by exempting those services. However, it is an option granted by way of derogation, subject to fulfilment of the conditions provided in that article. In that regard, the retention of that derogation reflects the gradual and still partial harmonisation of national VAT legislation. As long as the EU legislature has not established a definitive system and the Member States may retain their existing legislation, differences may exist between those Member States without those differences being contrary to EU law. (see paras 46-48, 50, 51, operative part 3)