EN Official Journal of the European Union C 346/12

Judgment of the Court (Grand Chamber) of 26 October 2010 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Wien (Austria)) — Ingrid Schmelz v Finanzamt Waldviertel

(Case C-97/09) (1)

(Sixth VAT Directive - Articles 24(3) and 28i - Directive 2006/112/EC - Article 283(1)(c) - Validity - Articles 12 EC, 43 EC and 49 EC - Principle of equal treatment - Special scheme for small undertakings - Exemption from VAT - Benefit of the exemption refused to taxable persons established in other Member States - Definition of ‘annual turnover’)

2010/C 346/20

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Wien

Parties to the main proceedings

Applicant: Ingrid Schmelz

Defendant: Finanzamt Waldviertel

Re:

Reference for a preliminary ruling — Unabhängiger Finanzsenat, Ausßenstelle Wien — Validity of a certain wording in Articles 24(3) and 28i of 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), as amended by Council Directive 92/111/EEC of 14 December 1992 amending Directive 77/388/EEC and introducing simplification measures with regard to value added tax, and of a certain wording in Article 283(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Special VAT scheme for small undertakings permitting a tax exemption except in the case of supplies of goods and services by a taxable person who is not established in the territory of the country — Refusal to grant an exemption, by virtue of those provisions, to a person established in another EU Member State — Compatibility of that scheme with Articles 12, 43 and 49 EC and with the general principles of Community law — If the wording in question is invalid, interpretation of the expression ‘annual turnover’ contained in Article 24 of Directive 77/388/EEC and point 2(c) of Annex XV, Title IX Taxation, of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 335), and also in Article 287 of Directive 2006/112/EC

Operative part of the judgment

1. Consideration of the questions has disclosed no factor of such a kind as to affect the validity, with regard to Article 49 EC, of Articles 24(3) and 28i of 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, as amended by Council Directive 2006/18/EC of 14 February 2006, or of Article 283(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax.

2. Articles 24 and 24a of Directive 77/388, as amended by Directive 2006/18, and Articles 284 to 287 of Directive 2006/112 must be interpreted as meaning that the term ‘annual turnover’ refers to the turnover generated by an undertaking in one year in the Member State in which it is established.

(1) OJ C 129, 6.6.2009.