Case C-90/02: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 22 November 2001 in the case of Finanzamt Gummersbach against Gerhard Bockemühl
Date: 2002-07-13
Institutions: Court of Justice
Subjects: interpretation of the law, invoicing, provision of services, tax, tax exemption

C 169/14

EN

Official Journal of the European Communities

13.7.2002

ORDER OF THE COURT

1.

(Third Chamber)

of 30 April 2002

in Case C-181/01 P: N v Commission of the European
Communities (1)

(Appeal — Officials — Social security — Article 73 of the
Staff Regulations — Definition of ‘accident’ — Refusal to
recognise HIV infection as an accident)

(2002/C 169/24)

(Language of the case: French)

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

2.

In Case C-181/01 P: N, an official of the Commission of
the European Communities, residing in Brussels (Belgium),
represented by G. Durazzo, — appeal against the judgment of
the Court of First Instance of the European Communities in
Case T-2/00 N v Commission [2001] ECR-SC I-A-37 and II-
135, seeking to have that judgment set aside, the other party
to the proceedings being the Commission of the European
Communities, (Agent: J. Currall): — the Court (Third Chamber),
composed of: F. Macken, President of the Chamber, C. Gul-
mann (Rapporteur) and J.-P. Puissochet,
Judges; Advocate
General: L.A. Geelhoed, Registrar: R. Grass, has made an order
on 30 April 2002, in which:

1.

The appeal is dismissed.

2. N is ordered to bear the costs.

(1) OJ C 200 of 14.7.2001.

Is it possible to characterise as VAT, within the meaning
of the provisions of the Sixth VAT Directive (77/388/
EEC) (1), the amount mentioned on an invoice by a person
who provides services to the State as a salaried employee,
when the person providing those services mistakenly
considers that he is providing services to the State as a
self-employed person whilst, in reality, he is an employee
and, on the recommendation of his employer, charges
VAT on the invoices issued by him and not on his total
earnings received from the State, which in law constitute
the tax basis of assessment to VAT, subsequently collected
from his earnings, but where the amount thereof is
determined on the earnings by means of an internal
deduction method and the earnings are regarded as
containing the amount of VAT owed, while the State
reduces the amount of legitimate earnings paid to that
person by the element of VAT they are calculated to
contain?

Can there be a departure from the formal principle
governing the tax as set out in Article 21(1)(c) of the
Sixth VAT Directive (77/388/EEC) (that is to say, where
VAT is mentioned on the invoice or other document
serving as an invoice, such tax is payable to the State),
where the State, in performing that activity in pursuance
of its public authority, is under Article 4(5) of the above
directive not subject to tax, so as to render the mechanism
of deductions inapplicable thereto, and the said tax
cannot be and is not passed on to the end consumer
(namely, the individual who contracts with the State for
the translation of documents), the provider of services
being entitled to reimbursement of the tax paid to the tax
authority after deduction of any input tax in order to
avoid the State’s enrichment as a result thereof?

(1) OJ L 145 of 13.6.1977, p. 1.

Reference for a preliminary ruling by the Athens Appeal
Court by order of that Court of 31 January 2002 in the
case of the Greek State against Maria Karageorgou

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 22 November 2001 in
the case of Finanzamt Gummersbach against Gerhard
Bockemühl

(Case C-78/02)

(2002/C 169/25)

(Case C-90/02)

(2002/C 169/26)

Reference has been made to the Court of Justice of the
European Communities by order of the Athens Appeal Court
(Greece) of 31 January 2002, received at the Court Registry on
11 March 2002, for a preliminary ruling in the case of the
Greek State against Maria Karageorgou on the following
questions:

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 22 November 2001, received at the

13.7.2002

EN

Official Journal of the European Communities

C 169/15

Court Registry on 15 March 2002, for a preliminary ruling
in the case of Finanzamt Gummersbach against Gerhard
Bockemühl on the following questions:

1.

2.

Is it necessary under Article 18(1)(a) of Directive 77/388/
EEC (1) for a person to whom services are supplied, who
is liable to pay tax under Article 21(1) of Directive 77/
388/EEC and who has been charged to tax as such, to be
in possession of an invoice issued in accordance with
Article 22(3) of Directive 77/388/EEC in order to exercise
his right to deduct input tax?

If the answer to this question is in the affirmative, what
details must the invoice contain? Is it detrimental
if,
instead of the supply of staff, the work carried out using
that staff is given as the service supplied?

3. What would be the consequences in law of inextinguish-
able doubts that the person issuing the invoice supplied
the service invoiced?

(1) OJ L 145 of 13.6.1977, p. 1.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 23 January 2002 in the case
of Finanzamt Offenbach am Main-Land against Faxworld
Vorgründungsgesellschaft Peter Hünninghausen und
Wolfgang Klein GbR

(Case C-137/02)

(2002/C 169/27)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 23 January 2002, received at the
Court Registry on 12 April 2002, for a preliminary ruling in
the case of Finanzamt Offenbach am Main-Land against
Faxworld Vorgründungsgesellschaft Peter Hünninghausen und
Wolfgang Klein GbR on the following question:

Is a partnership which has been established for the sole purpose
of forming a company limited by shares (Aktiengesellschaft)
entitled to deduct the value added tax paid on goods and
services procured by it,
if, after that company has been
formed, that partnership effects by formal act a transfer for

consideration of the procured goods and services to the
subsequently founded limited company and, from the outset,
did not intend to carry out any other output transactions, and
if, in the Member State concerned, a transfer of a totality of
assets is not deemed to be a supply of goods or services (first
sentence of Article 5(8) and Article 6(5) 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) (1)?

(1) OJ L 145 of 13.6.1977, p. 1.

Appeal brought on 15 April 2002 by the Commission of
the European Communities against the judgment deliver-
ed on 30 January 2002 by the Court of First Instance of
the European Communities (Second Chamber, Extended
Composition) in Case T-54/99 max.mobil Telekommuni-
kation Service GmbH v Commission of the European
Communities, supported by the Kingdom of the Nether-
lands

(Case C-141/02 P)

(2002/C 169/28)

An appeal against the judgment delivered on 30 January 2002
by the Court of First Instance of the European Communities
(Second Chamber, Extended Composition), in Case T-54/99
max.mobil Telekommunikation Service GmbH v Commission
of the European Communities(1), supported by the Kingdom
of the Netherlands, was brought before the Court of Justice
of the European Communities on 15 April 2002 by the
Commission of the European Communities, represented by
Walter Mölls and Klaus Wiedner, of the Commission’s Legal
Service, with an address for service at the office of Luis Escobar
Guerrero, also of the Legal Service, Wagner Centre, C 254,
Luxembourg.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of
the European Communities of 30 January 2002 in Case
T-54/99 (max.mobil v Commission)
in so far as it
declares admissible the action for annulment brought by
max.mobil against the Commission’s letter of 11 Decem-
ber 1998;

— dismiss as inadmissible the action for annulment brought
letter of

the Commission’s

by max.mobil against
11 December 1998;

— order max.mobil to pay the costs of the proceedings

before the Court of Justice.