Judgment of the Court (Fifth Chamber) of 29 April 2004 in Case C-17/01 (reference for a preliminary ruling from the Bundesfinanzhof): Finanzamt Sulingen v Walter Sudholz (Sixth VAT Directive — Articles 2 and 3 of Decision 2000/186/EC — Flat-rate limit on the right to deduct VAT on vehicles not used solely for business purposes — Retroactive authorisation of a national tax measure)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: Germany, VAT rate, basis of tax assessment, derogation from EU law, interpretation of the law, tax harmonisation

30.4.2004

EN

Official Journal of the European Union

C 118/5

JUDGMENT OF THE COURT

3. Dismisses the cross-appeal brought by Mr Parigi as inadmissible;

(Fifth Chamber)

of 29 April 2004

4. Orders Mr Ripa di Meana and Mr Orlando to pay not only their
own costs but also those incurred by the European Parliament
both at first instance and in the present appeal;

in Case C-470/00 P: European Parliament v Carlo Ripa di
Meana (1)

5. Orders Mr Parigi to bear his own costs and to pay those incurred

by the European Parliament in respect of the cross-appeal.

(Appeal — Members of the European Parliament — Provi-
sional retirement pension scheme — Time-limit for submis-
sion of applications to join that scheme — Knowledge
acquired — Cross-appeal — Liability for costs — Inadmissi-
bility)

(1) OJ C 79 of 10.3.2001

(2004/C 118/09)

(Language of the case: Italian)

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

In Case C-470/00 P: European Parliament (Agents: A. Caiola
and G. Ricci and subsequently with the assistance of F. Capelli,
avvocato) with an address for service in Luxembourg, APPEAL
against the judgment of the Court of First Instance of the Euro-
pean Communities (Fourth Chamber) of 26 October 2000 in
Joined Cases T-83/99 to T-85/99 Ripa di Meana and Others v
Parliament [2000] ECR II-3493, seeking to have that judgment
set aside in part, the other parties to the proceedings being:
Carlo Ripa di Meana, former Member of the European Parlia-
ment,
residing in Montecastello di Vibio (Italy), Leoluca
Orlando, former Member of the European Parliament, residing
in Palermo (Italy), and Gastone Parigi, former Member of the
European Parliament, residing in Pordenone (Italy), represented
by W. Viscardini and G. Donà, avvocati, with an address for
service in Luxembourg, applicants at first instance – the Court
(Fifth Chamber), composed of: C. W. A. Timmermans (Rappor-
teur), acting for the President of the Fifth Chamber, A. Rosas
and A. La Pergola Judges;
J. Mischo Advocate General; L.
Hewlett, for the Registrar, gave a judgment on 29 April 2004,
in which it:

1. Sets aside the judgment of the Court of First Instance of the Euro-
pean Communities of 26 October 2000 in Joined Cases T-83/
99to T-85/99Ripa di Meana and Others v Parliament in so far
as
the actions
brought by Mr Ripa di Meana and Mr Orlando;

in CasesT-83/99 and T-84/99,

it upholds,

2. Dismisses the actions brought by Mr Ripa di Meana and Mr
Orlando for annulment of the decisions contained in letters Nos
300762 and 300763 from the College of Quaestors of 4
February 1999, respectively rejecting their requests for the provi-
sional pension scheme referred to in Annex III
to the Rules
Governing the Payment of Expenses and Allowances to Members
of the European Parliament to apply with retroactive effect;

JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

in Case C-17/01 (reference for a preliminary ruling from
the Bundesfinanzhof): Finanzamt Sulingen v Walter
Sudholz (1)

(Sixth VAT Directive — Articles 2 and 3 of Decision
2000/186/EC — Flat-rate limit on the right to deduct VAT
on vehicles not used solely for business purposes — Retroac-
tive authorisation of a national tax measure)

(2004/C 118/10)

(Language of the case: German)

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

In Case C-17/01: reference to the Court under Article 234 EC
from the Bundesfinanzhof (Federal Finance Court) (Germany)
for a preliminary ruling in the proceedings pending before that
court between Finanzamt Sulingen and Walter Sudholz — on
the validity of Articles 2 and 3 of Council Decision
2000/186/EC of 28 February 2000 authorising the Federal
Republic of Germany to apply measures derogating from Arti-
cles 6 and 17 of the Sixth Directive 77/388/EEC on the harmo-
nisation of the laws of the Member States relating to turnover
taxes — Common system of value added tax: uniform basis of
assessment (OJ 2000 L 59, p. 12) — the Court (Fifth Chamber),
composed of: P.
Jann, acting for the President of the Fifth
Chamber, C.W.A. Timmermans and S. von Bahr (Rapporteur),
Judges; L.A. Geelhoed, Advocate General; M.-F. Contet, Prin-
cipal Administrator, for the Registrar, has given a judgment on
29 April 2004, in which it has ruled:

C 118/6

EN

Official Journal of the European Union

30.4.2004

1. Examination of the procedure leading to the adoption of Council
Decision 2000/186/EC of 28 February 2000 authorising the
Federal Republic of Germany to apply measures derogating from
Articles 6 and 17 of the Sixth 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 has disclosed no irregularity such as
to affect the validity of that decision.

2. Article 3 of Decision 2000/186/EC is invalid in that it provides
for the authorisation granted by the Council of
the European
Union to the Federal Republic of Germany to have retroactive
effect from 1 April 1999.

3. Article 2 of Decision 2000/186 meets the substantive require-
ments of Article 27(1) 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, as amended by Council Directive
95/7/EC of 10 April 1995, and is not invalid.

(1) OJ C 79, 10.3.2001.

the interpretation of Articles 2, 4(2), 13B(d) and 19(2) of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation 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 (Fifth Chamber),
composed of: P.
Jann, acting for the President of the Fifth
Chamber, C.W.A. Timmermans and S. von Bahr (Rapporteur),
Judges; P. Léger, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on 29
April 2004, in which it has ruled:

1. In a situation such as that in the main proceedings:

— activities which consist in the simple sale of shares and other
securities, such as holdings in investment funds, do not consti-
tute economic activities within the meaning of Article 4(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, and therefore do not come within
the scope of that directive;

JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

in Case C-77/01 (Reference for a preliminary ruling from
the Tribunal Central Administrativo): Empresa de Desen-
volvimento Mineiro SGPS SA (EDM) v Fazenda Pública (1)

(Sixth VAT Directive — Articles 2, 4(2), 13B(d) and 19(2)
— Meaning of ‘economic activities’ — Meaning of ‘incidental
financial transactions’ — Services effected for consideration)

(2004/C 118/11)

(Language of the case: Portuguese)

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

In Case C-77/01: Reference to the Court under Article 234 EC
from the Tribunal Central Administrativo (Portugal) for a preli-
minary ruling in the proceedings pending before that court
between Empresa de Desenvolvimento Mineiro SGPS SA
(EDM),
formerly Empresa de Desenvolvimento Mineiro SA
(EDM), and Fazenda Pública, intervener: Ministério Público, on

‘effected for

placements in investment funds do not constitute supplies of
services
consideration’ within the meaning of
Article 2(1) of Sixth Directive 77/388 and therefore likewise
do not come within the scope thereof;

the amount of turnover relating to those transactions must
consequently be excluded from the calculation of the deductible
proportion referred to in Articles 17 and 19 of that directive;

— by contrast the annual granting by a holding company of
interest-bearing loans to companies in which it has a share-
holding and placements by that holding company in bank
deposits or in securities, such as Treasury notes or certificates
of deposit, constitute economic activities carried out by a
taxable person acting as such within the meaning of Articles
2(1) and 4(2) of Sixth Directive 77/388;

however, the said transactions are exempted from value added
tax under points 1 and 5 of Article 13B(d) of that directive;

in calculating the deductible proportion referred to in Articles
17 and 19 of Sixth Directive 77/388, those transactions are
to be regarded as incidental transactions within the meaning
of the second sentence of Article 19(2) thereof in so far as
they involve only very limited use of assets or services subject
to value added tax; although the scale of the income generated
by financial transactions within the scope of Sixth Directive
77/388 may be an indication that those transactions should
not be regarded as incidental within the meaning of
that
provision, the fact that income greater than that produced by
the activity stated by the undertaking concerned to be its main
activity is generated by such transactions does not suffice to
preclude their classification as ‘incidental transactions’;