Judgment of the Court (Fifth Chamber) of 29 April 2004 in Case C-137/02 (reference for a preliminary ruling from the Bundesfinanzhof): Finanzamt Offenbach am Main-Land v Faxworld Vorgründungsgesellschaft Peter Hünninghausen und Wolfgang Klein GbR (Reference for a preliminary ruling — Interpretation of the Sixth VAT Directive — Right of a Vorgründungsgesellschaft (civil-law partnership the object of which is to prepare the means necessary for the activities of a capital company yet to be formed) to deduct input VAT — Transfer for consideration of the totality of those means upon formation of the capital company — Transfer not subject to VAT in consequence of the exercise by the Member State concerned of the option provided for in Article 5(8) of the Sixth VAT Directive)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: VAT, basis of tax assessment, company with share capital, interpretation of the law, provision of services, tax relief

C 118/20

EN

Official Journal of the European Union

30.4.2004

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

(Fifth Chamber)

of 29 April 2004

in Case C-117/02: Commission of the European Commu-
nities v Portuguese Republic (1)

(Failure of a Member State to fulfil obligations — Directive
85/337/EEC — Assessment of the effects of certain projects
on the environment — Construction of holiday villages and
hotel complexes — Failure to make a project to construct a
hotel complex subject to such an assessment)

(2004/C 118/34)

(Language of the case: Portuguese)

in Case C-137/02 (reference for a preliminary ruling from
the Bundesfinanzhof): Finanzamt Offenbach am Main-Land
v Faxworld Vorgründungsgesellschaft Peter Hünning-
hausen und Wolfgang Klein GbR (1)

(Reference for a preliminary ruling — Interpretation of the
Sixth VAT Directive — Right of a Vorgründungsgesellschaft
(civil-law partnership the object of which is to prepare the
means necessary for the activities of a capital company yet to
be formed) to deduct input VAT — Transfer for considera-
tion of the totality of those means upon formation of the
capital company — Transfer not subject to VAT in conse-
quence of the exercise by the Member State concerned of the
the Sixth VAT
option provided for

in Article 5(8) of

Directive)

(2004/C 118/35)

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

(Language of the case: German)

In Case C-117/02: Commission of the European Communities
(Agent: A. Caeiros), with an address for service in Luxembourg,
v Portuguese Republic (Agents: L. Fernandes, M. Telles Romão
and J. Lois) acting as Agents, with an address for service in
Luxembourg — application for a declaration that, by allowing
consent to be given to a planned tourism complex including
residential units, hotels and golf courses, located in the area of
Ponta do Abano, without an assessment of the effects of that
project on the environment, the Portuguese Republic has failed
to fulfil its obligations under Article 2(1) of Council Directive
85/337/EEC of 27 June 1985 on the assessment of the effects
of certain public and private projects on the environment (OJ
1985 L 175, p. 40) — the Court (Fifth Chamber), composed of:
A. Rosas (Rapporteur), acting for the President of the Fifth
Chamber, A. La Pergola and S. von Bahr, Judges; A. Tizzano,
Advocate General; R. Grass, Registrar, has given a judgment on
29 April 2004, in which it:

1. Dismisses the application;

2. Orders the Commission of the European Communities to pay the

costs.

(1) OJ C 156, 29.6.2002.

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

In Case C-137/02: reference to the Court under Article 234 EC
from the Bundesfinanzhof (Germany) for a preliminary ruling
in the proceedings pending before that court between Finan-
zamt Offenbach am Main-Land and Faxworld Vorgründungsge-
sellschaft Peter Hünninghausen und Wolfgang Klein GbR — on
the interpretation of Article 17(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), as amended by Council Directive 95/7/EC
of 10 April 1995 (OJ 1995 L 102, p. 18) — the Court (Fifth
Chamber), composed of: P. Jann, acting for the President of the
Fifth Chamber, A. Rosas and S. von Bahr (Rapporteur), Judges;
F.G. Jacobs, Advocate General; M.-F. Contet, Principal Adminis-
trator, for the Registrar, has given a judgment on 29 April
2004, in which it has ruled:

A partnership established for the sole purpose of founding a capital
company is entitled to deduct the input tax paid on supplies of goods
and services where its only output transaction in the performance of
its object was to effect by formal act the transfer for consideration of
the supplies obtained to that company once founded and where,
exercised the options
because

the Member State

concerned has

30.4.2004

EN

Official Journal of the European Union

C 118/21

provided for in Articles 5(8) and 6(5) 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, a transfer of a totality of
assets is not deemed to be a supply of goods or services.

(1) OJ C 169, 13.7.2002.

ment which, under the criteria determined by the Member State in
question, may be considered to serve as an invoice.

(1) OJ C 156, 29.6.2002.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

in Case C-152/02 (reference for a preliminary ruling from
the Bundesfinanzhof): Terra Baubedarf-Handel GmbH v
Finanzamt Osterholz-Scharmbeck (1)

(Sixth VAT Directive — Article 17(1) and Article 18(1) and
(2) — Right to deduct input VAT — Conditions of exercise)

(2004/C 118/36)

(Language of the case: German)

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

In Case C-152/02: 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 Terra Baubedarf-Handel GmbH and Finanzamt
Osterholz-Scharmbeck — on the interpretation of Articles 17
and 18 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 (Fifth Chamber), composed of: P. Jann, acting for the
President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas,
A. La Pergola and S. von Bahr (Rapporteur), Judges; C. Stix-
Hackl, Advocate General; M. Múgica Arzamendi, Principal
Administrator, for the Registrar, has given a judgment on 29
April 2004, in which it has ruled:

For the deduction referred to in Article 17(2)(a) 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, the first sub-
paragraph of Article 18(2) of that directive must be interpreted as
meaning that the right to deduct must be exercised in respect of the
tax period in which the two conditions required by that provision are
satisfied, namely that the goods have been delivered or the services
performed and that the taxable person holds the invoice or the docu-

JUDGMENT OF THE COURT

(Full Chamber)

of 27 April 2004

in Case C-159/02 (reference for a preliminary ruling from
the House
v
Lords): Gregory
Felix Fareed Ismail Grovit, Harada Ltd and Changepoint
SA (1)

Turner

Paul

of

brought

a
in
(Brussels Convention — Proceedings
in another
Contracting State — Proceedings brought
Contracting State by the defendant in the existing proceed-
ings — Defendant acting in bad faith in order to frustrate
the existing proceedings — Compatibility with the Brussels
Convention of the grant of an injunction preventing the
defendant from continuing the action in another Member
State)

(2004/C 118/37)

(Language of the case: English)

In Case C-159/02: reference to the Court under the Protocol of
3 June 1971 on the interpretation by the Court of Justice of
the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters by
the House of Lords (United Kingdom) for a preliminary ruling
in the proceedings pending before that court between Gregory
Paul Turner and Felix Fareed Ismail Grovit, Harada Ltd and
Changepoint SA — on the interpretation of the abovemen-
tioned Convention of 27 September 1968 (OJ 1972 L 299, p.
32), as amended by the Convention of 9 October 1978 on the
Accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland (OJ 1978 L
304, p. 1, and – amended version – p. 77), by the Convention
of 25 October 1982 on the Accession of the Hellenic Republic
(OJ 1982 L 388, p. 1) and by the Convention of 26 May 1989
on the Accession of the Kingdom of Spain and the Portuguese
Republic (OJ 1989 L 285, p. 1) — the Court, composed of: V.
Skouris, President, P. Jann (Rapporteur), C.W.A. Timmermans,
C. Gulmann, J.N. Cunha Rodrigues and A. Rosas, Presidents of
Chambers, A. La Pergola,
J.-P. Puissochet, R. Schintgen,
N. Colneric and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer,
Advocate General; L. Hewlett, Principal Administrator, for the
Registrar, has given a judgment on 27 April 2004, in which it
has ruled: