Case C-149/01: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court of 13 March 2001, in the case of Commissioners of Customs and Excise against First Choice Holidays plc
Date: 2001-06-16
Institutions: Court of Justice
Subjects: VAT, basis of tax assessment, commission agent, fixing of prices, interpretation of the law, travel agency

C 173/28

EN

Official Journal of the European Communities

16.6.2001

Reference for a preliminary ruling by the Court of Appeal
(England & Wales) (Civil Division), by order of that court
in the case of Commissioners of
of 13 March 2001,

Customs and Excise against First Choice Holidays plc

2. Does ‘the total amount to be paid by the traveller’
within Article 26.2 include the additional sum
referred to in (c) above?

(Case C-149/01)

(2001/C 173/47)

(1) 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 (OJ L 145, 13.06.77, p. 1).

Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England & Wales) (Civil Division) of 13 March 2001, which
was received at the Court Registry on 26 March 2001, for a
preliminary ruling in the case of Commissioners of Customs
and Excise against First Choice Holidays, on the following
questions:

Where a tour operator within the meaning of Article 26 of
Council Directive 77/388/EEC (1)

(a)

supplies package holidays to customers through the
disclosed agency of a travel agent;

Action brought on 9 April 2001 by the Commission of
the European Communities against the French Republic

(Case C-150/01)

(2001/C 173/48)

(b) permits the agent to arrange the supply of package
holidays at a discount from the price published in the
tour operator’s brochure (the customer being liable to
pay only the discounted price for the holiday);

An action against the French Republic was brought before the
Court of Justice of the European Communities on 9 April
2001 by the Commission of the European Communities,
represented by M. Patakia and B. Mongin, acting as Agents,
with an address for service in Luxembourg.

(c)

(d)

(e)

(f)

requires the agent who arranges the supply of a package
holiday at a discount not only to pass on to the tour
operator the price actually charged to the customer but
also to pay to the tour operator an additional sum equal
to the discount given to the customer (who is unaware of
the financial arrangements between the tour operator and
the agent), so that the agent accounts to the tour operator
for the full brochure price of the holiday;

agrees to pay the agent a commission based on the
brochure price of the holiday, which in practice is paid
by set-off against
the sums due from the agent as
mentioned in (c) above;

does not know whether or not the agent has arranged the
sale of a particular holiday at a discounted price, or the
amount of the discount;

The Commission claims that the Court should:

1.

declare that, by retaining legislation which requires
intellectual property advisers established in other Member
States to appear on the register of French intellectual
property advisers, and thus to possess the French qualifi-
cation and to be ordinarily resident or have a place of
business in France, in order to supply services in France,
the French Republic has failed to fulfil its obligations
under Articles 49 to 55 of the EC Treaty and Council
Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher-education diplomas
awarded on completion of professional education and
training of at least three years’ duration (1);

2.

order the French Republic to pay the costs.

as between itself and the agent, accounts for the sale of
the holiday on the basis that it has been paid the full
brochure price of the holiday;

Pleas in law and main arguments

1. Having established the above facts, how should the
additional sum (referred to in (c) above) paid by the
travel agent to the tour operator be characterised for
the purposes of Article 26.2?

— By making an ‘intellectual property adviser’ who provides
services subject to the same obligations as an ‘intellectual
property adviser’ established in France, the French legis-
lation infringes Article 49 EC. While the pursuit, even as
a provider of services, of an activity which is not