Case C-245/04: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case of EMAG Handel Eder OHG against Finanzlandesdirektion für Kärnten (Berufungssenat II)
Date: 2004-10-09
Institutions: Court of Justice
Subjects: VAT, carriage of goods, delivery, inter-company cooperation, interpretation of the law, tax exemption

C 251/2

EN

Official Journal of the European Union

9.10.2004

4) Is jurisdiction over consumer contracts afforded sui
generis to a specific statutory form of contractual perfor-
mance claim or sui generis to a constructive quasi-
contractual performance claim which arises as a result
of a promise of financial benefit made by an undertaking
and the claiming of
the financial benefit by the
consumer?

(1) OJ L 12, 2001, p. 1.

Reference for a preliminary ruling by the Verwaltungs-
gerichtshof by order of that court of 26 May 2004 in the
case of EMAG Handel Eder OHG against Finanzlandes-
direktion für Kärnten (Berufungssenat II)

(Case C-245/04)

(2004/C 251/02)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Verwaltungsgerichtshof
(Austria), of 26 May 2004,
(Higher Administrative Court)
received at the Court Registry on 10 June 2004, for a preli-
minary ruling in the case of EMAG Handel Eder OHG against
Finanzlandesdirektion für Kärnten (Berufungssenat II) (Second
Appeal Chamber of the Carinthia Regional Tax Authority) for a
preliminary ruling on the following questions:

1. Is the first sentence of Article 8(1)(a) of the Sixth Council
Directive 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 (77/
388/EEC) (1) to be interpreted as meaning that the place
where dispatch or transport begins is relevant even when
several undertakings enter into arrangements for the supply
of the same goods and those arrangements are implemented
by way of a single movement of goods?

2. Are successive supplies to be treated as exempted intra-
Community supplies when several undertakings enter into
arrangements for the supply of the same goods and those
arrangements are implemented by way of a single move-
ment of goods?

3. If the answer to the first question is in the affirmative, is the
place at which the second supply begins the actual place of
departure of the goods or the place where the first supply
finishes?

4. Is the identity of the party having the right of disposal of
factor in

the goods during their movement a relevant
answering the first, second and third questions?

Reference for a preliminary ruling by the Verwaltungs-
gerichtshof by order of that court of 26 May 2004 in the
case Turn- und Sportunion Waldburg against Finanz-
landesdirektion für Tirol

(Case C-246/04)

(2004/C 251/03)

Reference has been made to the Court of Justice of the Euro-
the Verwaltungsgerichtshof
pean Communities by order of
(Austria), of 26 May 2004,
(Higher Administrative Court)
which was received at the Court Registry on 10 June 2004, for
a preliminary ruling in the case of Turn- und Sportunion Wald-
burg against Finanzlandesdirektion für Tirol.

The Verwaltungsgerichtshof asks the Court of Justice to give a
preliminary ruling on the following questions:

1. May a Member State exercise its discretion under Article 13
C of 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 (‘the directive’)
to give taxable persons the right, despite the tax exemption
for the letting of property provided for in Article 13 B(b) of
the directive, to opt for taxation only in a uniform manner
or may the Member State distinguish by reference to the
type of turnover or the group of taxable persons?

legislation,

2. Does Article 13 B(b) in conjunction with C(a) of the direc-
tive permit Member States'
like Paragraph
6(1)(14) of the Umsatzsteuergesetz 1994 (Law on turnover
tax; hereinafter ‘UStG 1994’) in conjunction with Paragraph
6(1)(16) of the UStG 1994, under which the possibility of
opting for taxation of turnover from leasing and letting is
limited in such a way that non-profit-making sport clubs do
not have that option?

3. Does Article 13 B(b) in conjunction with C(a) of the direc-
tive permit Member States' legislation, like Paragraph 2(5)(2)
of the UStG 1994 in conjunction with Paragraph 1(2)(1) of
the version of the Hobbies Order in BGBl Nr 33/1993
(Bundesgesetzblatt; Austrian Official Journal), under which
the possibility of opting for taxation of
turnover from
letting does not exist where the letting does not lead within
a foreseeable period of time to an overall profit or surplus
in income and concerns a building suitable for use as a
private dwelling?

(1) OJ 1977 L 145, p. 1.

(1) OJ L 145, p. 1.