Judgment of the Court (Fifth Chamber) of 22 February 2001 in Case C-393/98 (reference for a preliminary ruling from the Supremo Tribunal Administrative (Portugal)): Ministério Público, António Gomes Valente v Fazenda Pública (Internal taxation — Special tax on motor vehicles — Second-hand vehicles)
Date: 2001-06-16
Institutions: Court of Justice
Subjects: EU law - national law, import, interpretation of the law, national production, restriction on competition, vehicle tax

C 173/10

EN

Official Journal of the European Communities

16.6.2001

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

of 22 February 2001

in Case C-393/98 (reference for a preliminary ruling
from the Supremo Tribunal Administrative (Portugal)):
Ministério Pu´ blico, Anto´ nio Gomes Valente v Fazenda
Pu´ blica (1)

(Internal taxation — Special tax on motor vehicles —
Second-hand vehicles)

(Fifth Chamber)

of 22 February 2001

in Case C-408/98 (reference for a preliminary ruling from
the High Court of Justice of England and Wales, Queen’s
Bench Division (Divisional Court)): Abbey National plc v
Commissioners of Customs and Excise (1)

(2001/C 173/15)

(Language of the case: Portuguese)

(VAT — Articles 5(8) and 17(2)(a) and (5) of the Sixth VAT
Directive — Transfer of a totality of assets — Deduction of
input tax on services used by the transferor for the purposes
of the transfer — Goods and services used for the purposes
of the taxable person’s taxable transactions)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(2001/C 173/16)

In Case C-393/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Supremo Tribunal
Administrativo, (Supreme Administrative Court), Portugal for
a preliminary ruling in the proceedings pending before that
court between Ministério Pu´ blico, Anto´ nio Gomes Valente and
Fazenda Pu´ blica — on the interpretation of Article 95 of the
EC Treaty (now, after amendment, Article 90 EC) the Court
(Fifth Chamber), composed of: A. La Pergola, President of the
Chamber, M. Wathelet (Rapporteur), D.A.O. Edward, P. Jann
and L. Sevo´ n, Judges; N. Fennelly, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 22 Febru-
ary 2001, in which it has ruled:

1.

2.

The fact that the Commission discontinues infringement pro-
ceedings against a Member State concerning a piece of
legislation has no effect on the obligation upon a court of last
instance of that Member State to refer to the Court of Justice,
pursuant to the third paragraph of Article 177 of the EC Treaty
(now the third paragraph of Article 234 EC), a question of
Community law in relation to the legislation concerned.

The first paragraph of Article 95 of the Treaty does not permit
a Member State to apply to second-hand vehicles imported from
other Member States a system of
taxation in which the
depreciation in the actual value of those vehicles is calculated in
a general and abstract manner, on the basis of fixed criteria or
scales determined by a legislative provision, a regulation or an
administrative provision, unless those criteria or scales are
capable of guaranteeing that the amount of the tax due does
not exceed, even in a few cases, the amount of the residual tax
incorporated in the value of similar vehicles already registered
in the national territory.

(1) OJ C 397 of 19.12.1998.

(Language of the case: English)

In Case C-408/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the High Court of
Justice of England and Wales, Queen’s Bench Division (Div-
isional Court), for a preliminary ruling in the proceedings
pending before that court between Abbey National plc and
Commissioners of Customs and Excise — on the interpretation
of Articles 5(8) and 17(2)(a) of 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 assess-
ment (OJ 1977 L 145, p. 1) — the Court (Fifth Chamber),
composed of: D.A.O. Edward, acting as President of the
Fifth Chamber, P. Jann and L. Sevo´ n (Rapporteur), Judges;
F.G. Jacobs, Advocate General; L. Hewlett, Administrator, for
the Registrar, has given a judgment on 22 February 2001, in
which it has ruled:

Where a Member State has made use of the option in Article 5(8) of
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, so that the transfer of a totality of assets or part thereof
is regarded as not being a supply of goods, the costs incurred by the
transferor for services acquired in order to effect that transfer form
part of that taxable person’s overheads and thus in principle have a
direct and immediate link with the whole of his economic activity. If,
therefore, the transferor effects both transactions in respect of which
value added tax is deductible and transactions in respect of which it
is not, it follows from Article 17(5) of the Sixth Directive 77/388
that he may deduct only that proportion of the value added tax which
is attributable to the former transactions. However, if the various