Case C-109/02: Action brought on 22 March 2002 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2002-06-01
Institutions: Court of Justice
Subjects: European Commission, Germany, VAT, action for failure to fulfil an obligation, approximation of laws, artistic profession, performing arts, provision of services, tax exemption

1.6.2002

EN

Official Journal of the European Communities

C 131/7

The Commission claims that the Court should:

The applicant claims that the Court should:

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 1999/32/EC (1) of 26 April 1999
relating to a reduction in the sulphur content of certain
liquid fuels and amending Directive 93/12/EEC, or in any
case by failing to notify the Commission of them, the
Federal Republic of Germany has failed to fulfil
its
obligations under Article 10 of that directive;

2. Order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

It follows from the binding nature of directives under the third
paragraph of Article 249 EC and from the first paragraph of
Article 10 EC that the Member States to which a directive is
addressed are obliged to transpose its provisions into national
law in such a way that they become fully effective in practice
from the date of expiry of the period for transposition. The
period prescribed by Article 10 of the directive expired on
1 July 2000.

(1) OJ L 121 of 11.5.1999, p. 13.

Action brought on 22 March 2002 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-109/02)

(2002/C 131/13)

1.

declare that, by applying a reduced rate of turnover tax
to both services provided by musical ensembles which
put on their own public performances or do so through
an events organiser and services provided by soloists
putting on their own public performances, whilst the
services of soloists who work for an organiser are subject
to the normal rate, the Federal Republic of Germany has
failed to fulfil its obligations under the third subparagraph
of Article 12(3)(a) of the Sixth Council Directive 77/388/
EEC (1) 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;

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The action is directed against the rule in subparagraph (7)(a)
of Article 12(2) of the German Law on turnover taxes, which
is incompatible with the principles of the Sixth VAT Directive
(fiscal neutrality, objectivity and uniform rate of duty). The
third subparagraph of Article 12(3)(a) of
the Sixth VAT
Directive,
in conjunction with Annex H thereto, does not
permit a taxable activity to be divided into subgroups for the
purpose of applying different rates of tax to such subgroups,
issue provides. Community law does not
as the rule at
recognise an objective distinction as regards the different
treatment at
the activities of performing artists
according to whether the artists are appearing as soloists or as
part of an ensemble. In the Commission’s view there is also
competition between similar services provided by soloists and
ensembles as ‘performing artists’ for the purposes of the
third subparagraph of Article 12(3)(a), in conjunction with
paragraph 8 of Annex H to, the Sixth VAT Directive.

issue of

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 22 March 2002 by the Commission of the European
Communities,
represented by Mr Enrico Traversa, Legal
Adviser, and Mr Günter Wilms, Member of its Legal Service,
with an address for service in Luxembourg at the office of
Mr Luis Escobar Guerrero, of its Legal Service, Wagner Centre
C 254, Kirchberg, Luxembourg.

(1) OJ L 145 of 13.6.1997, p. 1.