Judgment of the Court (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 (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)
Date: 2001-06-16
Institutions: Court of Justice
Subjects: VAT, cessation of trading, delivery, interpretation of the law, tax relief, transfer of property

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

16.6.2001

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Official Journal of the European Communities

C 173/11

services acquired by the transferor in order to effect the transfer have
a direct and immediate link with a clearly defined part of his economic
activities, so that the costs of those services form part of the overheads
of that part of the business, and all the transactions relating to that
part of the business are subject to value added tax, he may deduct all
the value added tax charged on his costs of acquiring those services.

(1) OJ C 1 of 4.1.1999.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 22 February 2001

in Joined Cases C-52/99 and C-53/99 (reference for a
preliminary ruling from the Cour du Travail de Liège
(Belgium)): Office National des Pensions (ONP) v Giocon-
da Camarotto (C-52/99), Giuseppina Vignone (C-53/99) (1)

(Council Regulation (EEC) No 1408/71, as amended by
Regulation (EEC) No 1248/92 — Social security Insurance
relating to old age and death — Calculation of benefits —
Changes to the rules governing calculation of benefits)

1. Article 95a of Regulation (EEC) No 1408/71 of the Council
of 14 June 1971 on the application of social security schemes
to employed persons, to self-employed persons and to members
of their families moving within the Community, as amended by
Council Regulation (EEC) No 1248/92 of 30 April 1992,
laying down transitional provisions for application of Regu-
lation No 1248/92, applies to recipients of pensions who,
before the date of entry into force of the amendments introduced
by the latter regulation, had already brought proceedings before
a national court seeking to obtain the right to the pension
by contesting the application of the national rules against
overlapping, even if a final decision in those proceedings had
not yet been given at the time of the entry into force of the new
provisions.

2.

It is for the national court to determine, first, whether its
national law requires an application for review to be made
either to the competent social security institution within the
period prescribed and in accordance with the relevant formal
requirements, or to the court itself according to the applicable
rules of procedure. Second, it is for that court to ensure that
those requirements are not less favourable than those governing
similar situations under domestic law and that they are not
such as to render impossible in practice or excessively difficult
the exercise of the rights conferred on claimants by Regulation
No 1408/71, as amended by Regulation No 1248/92.

(1) OJ C 100 of 10.4.1999.

(2001/C 173/17)

JUDGMENT OF THE COURT

(Language of the case: French)

(Second Chamber)

of 22 February 2001

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

in Case C-187/99 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Fazenda Pu´ blica v
Fa´brica de Queijo Eru Portuguesa Lda (1)

In Joined Cases C-52/99 and C-53/99: reference to the Court
under Article 177 of the EC Treaty (now Article 234 EC) from
the Cour du Travail de Liège (Higher Labour Court, Liège) for
a preliminary ruling in the proceedings pending before that
court between Office National des Pensions (ONP) and Giocon-
da Camarotto (C-52/99), Giuseppina Vignone (C-53/99) — on
the interpretation of Article 95a of Council Regulation (EEC)
No 1408/71 of 14 June 1971 on the application of social
security schemes to employed persons,
to self-employed
persons and to members of their families moving within the
Community (OJ, English Special Edition 1971 (II), p. 416), as
amended by Council Regulation (EEC) No 1248/92 of 30 April
1992 (OJ 1992 L 136, p. 7) — the Court (Fifth Chamber),
composed of: A. La Pergola, President of
the Chamber,
D.A.O. Edward (Rapporteur) and P. Jann, Judges; S. Alber,
Advocate General; H. von Holstein, Deputy Registrar, for the
Registrar, has given a judgment on 22 February 2001,
in
which it has ruled:

(Inward processing relief arrangements — Regulation (EEC)
No 1999/85 — Rate of yield of the processing operation —
Authorisation issued by the competent customs authority —
Power of that authority unilaterally to alter the rate of yield)

(2001/C 173/18)

(Language of the case: Portuguese)

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

In Case C-187/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the the Supremo