Judgment of the Court (Sixth Chamber) of 19 June 2003 in Case C-149/01 (Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division): Commissioners of Customs & Excise v First Choice Holidays plc (Sixth VAT Directive — Article 26(2) — Special scheme for the taxation of travel agents and tour operators — Taxable amount — Margin — Total amount to be paid by the traveller)
Date: 2003-08-02
Institutions: Court of Justice
Subjects: VAT, basis of tax assessment, commission agent, fixing of prices, interpretation of the law, travel agency

2.8.2003

EN

Official Journal of the European Union

C 184/7

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Sixth Chamber)

of 19 June 2003

(Fifth Chamber)

of 12 June 2003

in Case C-149/01 (Reference for a preliminary ruling from
the Court of Appeal (England & Wales) (Civil Division):
Commissioners of Customs & Excise v First Choice Holi-
days plc (1)

(Sixth VAT Directive — Article 26(2) — Special scheme for
the taxation of travel agents and tour operators — Taxable
amount — Margin — Total amount
to be paid by the

traveller)

in Case C-234/01 (Reference for a preliminary ruling from
the Finanzgericht Berlin): Arnoud Gerritse v Finanzamt
Neukölln-Nord (1)

(Income tax — Non-residents — Article 59 of the EC Treaty
(now, after amendment, Article 49 EC) and Article 60 of the
EC Treaty (now Article 50 EC) — Non-taxable threshold
amount — Deduction of business expenses)

(2003/C 184/13)

(2003/C 184/12)

(Language of the case: German)

(Language of the case: English)

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

In Case C-149/01: Reference to the Court under Article 234
EC by the Court of Appeal of England & Wales, Civil Division
(United Kingdom) for a preliminary ruling in the proceedings
pending before that court between Commissioners of Customs
& Excise and First Choice Holidays plc, on the interpretation of
Article 26(2) of 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 (OJ 1977 L 145, p. 1), the
Court (Sixth Chamber), composed of: R. Schintgen, President
of
the Sixth
Chamber, C. Gulmann (Rapporteur), V. Skouris, F. Macken
and J.N. Cunha Rodrigues,
Judges; A. Tizzano, Advocate
General; L. Hewlett, Administrator, for the Registrar, has given
a judgment on 19 June 2003, in which it has ruled:

the Second Chamber, acting as President of

to be paid by the traveller’ within the meaning of

Article 26(2) of 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 must be interpreted as meaning that the ‘total
amount
that
provision includes the additional amount that a travel agent, acting
as intermediary on behalf of a tour operator, must, in circumstances
such as those described in the order for reference, pay to the tour
operator on top of the price paid by the traveller and which corresponds
in amount to the discount given by the travel agent to the traveller on
the price of the holiday stated in the tour operator's brochure.

In Case C-234/01: Reference to the Court under Article 234
EC by the Finanzgericht Berlin (Germany) for a preliminary
ruling in the proceedings pending before that court between
Arnoud Gerritse and Finanzamt Neukölln-Nord, on the inter-
pretation of Article 52 of the EC Treaty (now, after amend-
ment, Article 43 EC), the Court (Fifth Chamber), composed of:
M. Wathelet
the Chamber, C.W.
A. Timmermans, D.A.O. Edward, P. Jann and A. Rosas, Judges;
P. Léger, Advocate General; M.-F. Contet, Principal Adminis-
trator,
for the Registrar, has given a judgment on 12 June
2003, in which it has ruled:

(Rapporteur), President of

1. Article 59 of the EC Treaty (now, after amendment, Article 49
EC) and Article 60 of
the EC Treaty (now Article 50 EC)
preclude a national provision such as that at issue in the main
proceedings which, as a general rule, takes into account gross
income when taxing non-residents, without deducting business
expenses, whereas residents are taxed on their net income, after
deduction of those expenses.

2. However, those articles of the Treaty do not preclude that same
provision in so far as, as a general rule, it subjects the income
the uniform rate of
of non-residents to a definitive tax at
the income of residents is
25 %, deducted at source, whilst
including a tax-free
table
taxed according to a progressive
allowance, provided that the rate of 25 % is not higher than
that which would actually be applied to the person concerned,
in accordance with the progressive table,
in respect of net
income increased by an amount corresponding to the tax-free
allowance.

(1) OJ C 173 of 16.6.2001.

(1) OJ C 245 of 1.9.2001.