Case C-452/03: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 17 October 2003, in the case of 1) RAL (Channel Islands) Ltd, 2) RAL Ltd, 3) RAL Services Ltd, 4) RAL Machines Ltd against Commissioners of Customs and Excise
Date: 2004-01-10
Institutions: Court of Justice
Subjects: VAT, interpretation of the law, provision of services, tax exemption, tax harmonisation

10.1.2004

EN

Official Journal of the European Union

C 7/21

2. Must Articles 43, 48 and 49 of

the EC Treaty be
interpreted as precluding national rules such as those laid
down in Legislative Decree No 241 of 9 July 1997, as
amended by Legislative Decree No 490 of 28 December
1998, read together with the consolidated law on income
tax (Decree of the President of the Republic No 917 of
22 December 1986) and Law No 413 of 30 December
1991, which exclusively reserves the right to provide
certain types of
tax advice to a single category of
operators, namely the Centri di Assistenza Fiscale (or
CAFs), and denies other economic operators in the sector
who are nevertheless professionally qualified to provide
tax and accounting advice (doctors, commercial account-
ants, lawyers and work consultants) the opportunity of
providing, on the same terms and conditions, the type of
advice reserved to the CAFs?

3. Must Article 87 of the EC Treaty be interpreted as
meaning that a measure such as that arising from the
rules laid down in Legislative Decree No 241 of 9 July
1997, and in particular Article 38 thereof, which provides
for payment to be made to CAFs from State funds in
respect of the activities referred to in Articles 34(4) and
37(2) of that legislative decree, constitute State aid?

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 17 October 2003, in the case of 1) RAL
(Channel Islands) Ltd, 2) RAL Ltd, 3) RAL Services Ltd,
4) RAL Machines Ltd against Commissioners of Customs
and Excise

(Case C-452/03)

(2004/C 7/34)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of Justice
(England & Wales), Chancery Division, dated 17 October 2003,
which was received at the Court Registry on 27 October 2003,
for a preliminary ruling in the case of 1) RAL (Channel Islands)
Ltd, 2) RAL Ltd, 3) RAL Services Ltd, 4) RAL Machines Ltd and
Commissioners of Customs and Excise on the following
questions:

(1)

In the circumstances of the present case and

(2) having regard to 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, in particular Articles 2, 4, and 9, the Thir-
teenth Council Directive (86/560/EEC) (2) of 17 Novem-
ber 1986 on the harmonisation of the laws of the
Member States relating to turnover taxes — arrangements
for the refund of value added tax to taxable persons
not established in Community territory,
in particular
Articles 1 and 2, and the general principles of Community
law:

1. How is the expression ‘fixed establishment’
Article 9 of the Sixth Directive to be interpreted?

in

2. What are the factors to be considered in determining
whether the supply of slot gaming services is from
the business establishment of a company such as Cl
or from any fixed establishments that a company
such as Cl might possess?

3.

In particular:

a) Where the business of a company (‘A’)

is
structured in circumstances such as those of the
present case so that a connected company (‘B’),
whose business establishment lies outside the
territory of the Community, supplies slot gam-
ing services and the sole purpose of the struc-
ture is to eliminate A’s liability to pay VAT in
the State in which it is established:

(i)

can the slot gaming services be regarded
as supplied from a fixed establishment in
that Member State; and, if so,

(ii)

are the slot gaming services to be deemed
to be supplied from the fixed establish-
ment or are they deemed to be supplied
from the place where B has established its
business?

b) Where the business of a company (‘A’)

is
structured so that, for the purposes of the place
of supply rules, a connected company (‘B’), in
circumstances such as those of the present case,
purports to supply slot gaming services from a
business establishment outside the territory of
the Community and has no fixed establishment,
from which those services are provided, in the
Member State in which A is established and the
sole purpose of the structure is to eliminate A’s
liability to pay VAT in that State on those
services:

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Official Journal of the European Union

10.1.2004

(i)

do the transactions between B and connec-
ted companies within the Member State
(‘A’, ‘C’ and ‘D’) qualify for VAT purposes
as supplies made by or to those companies
in the course of their economic activities;
if not,

(ii) what

factors should be considered in
determining the identity of the supplier of
the slot gaming services?

4.

a)

Is there a principle of abuse of right which
(independently of the interpretation given to
the VAT Directives) is capable of precluding the
advantage sought in a case such as the present?

b)

If so, how does it operate in the circumstances
such as the present?

5.

a) What significance, if any, should be attached to
the fact that A, C and D are not subsidiaries of
B and that B does not control A, C and D either
legally or economically?

b) Would it make a difference to any of the
answers given above if the type of management
undertaken by B at its business establishment
outside the territory of the Community were
necessary for the provision of slot gaming
services to customers and neither A, C nor D
performs those activities?

(1) OJ L 145, 13.06.77, p. 1.
(2) OJ L 326, 21.11.1986, p. 40.

Reference for a preliminary ruling by the High Court
of Justice (England & Wales), Queen’s Bench Division
(Administrative Court), by order of that court dated
23 October 2003,
in the case of The Queen on the
application of 1) ABNA Ltd, 2) Denis Brinicombe (a part-
nership), 3) BOCM Pauls Ltd, 4) Devenish Nutrition Ltd,
5) Nutrition Services (International) Ltd, 6) Primary Diets
Ltd against 1) Secretary of State for Health, 2) Food
Standards Agency

(Case C-453/03)

(2004/C 7/35)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division (Adminis-

trative Court) dated 23 October 2003, which was received at
the Court Registry on 27 October 2003, for a preliminary
ruling in the case of The Queen on the application of 1) ABNA
Ltd, 2) Denis Brinicombe (a partnership), 3) BOCM Pauls Ltd,
4) Devenish Nutrition Ltd, 5) Nutrition Services (International)
Ltd, 6) Primary Diets Ltd and 1) Secretary of State for Health,
2) Food Standards Agency on the following question:

Are Article 1(1)(b) of Directive 2002/02 (1) and/or Article 1(4)
of Directive 2002/02,
it amends
to the
Article 5c(2)(a) of Directive 79/373 (2) by requiring percentages
to be listed, invalid by reason of

extent

that

a.

b.

c.

the absence of a legal basis in Article 152(4)(b) EC;

infringement of the fundamental right to property;

infringement of the principle of proportionality?

(1) Directive 2002/02/EC of the European Parliament and of the
Council of 28 January 2002 amending Council Directive 79/373/
EEC on the circulation of compound feedingstuffs and repealing
Commission Directive 91/357/EEC (OJ L 63, 06.03.2002, p. 23).
(2) Directive 79/373/EEC of the Council of 2 April 1979 on the
marketing of compound feedingstuffs (OJ L 86, 06.04.1979,
p. 30).

Action brought on 27 October 2003 by the Commission
of the European Communities against the Italian Republic

(Case C-456/03)

(2004/C 7/36)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 27 October
2003 by the Commission of the European Communities,
represented by Karen Banks, acting as Agent.

The applicant claims that the Court should:

— declare that, by failing to bring into force the laws,
regulations and administrative provisions necessary to
comply with Directive 1998/44/EC (1) of the European
Parliament and of the Council of 6 July 1998 on the legal
protection of biotechnological
the Italian
Republic has failed to fulfil its obligations under Article 15
of that directive;

inventions,